Senator Orrin Hatch,
Chairman

Senator Patrick J. Leahy,
Ranking Minority Member

Committee on the Judiciary
United States Senate

Representative F. James Sensenbrenner, Jr.,
Chairman

Representative John Conyers, Jr.,
Ranking Minority Member

Committee on the Judiciary
U.S. House of Representatives

Re:  Blakely v. Washington and the federal sentencing system

Dear Senators and Representatives:

            On June 24, 2004, in Blakely v. Washington, the U.S. Supreme Court struck down aspects of the sentencing guideline scheme of the State of Washington as violating the Sixth Amendment right to trial by jury.  While the majority opinion did not directly address Blakely's effect, if any, on the Federal Sentencing Guidelines, the decision has caused many to question at least some aspects of our federal sentencing system.  At this time, our various organizations have no agreement on what action, if any, Congress should ultimately take with respect to the Blakely decision.  We are all agreed, however, that immediate legislative action is not warranted. 
  
            At a Senate Judiciary Committee hearing on July 13, representatives of the Justice Department, the Sentencing Commission and the Federal Judges Association all testified that no immediate legislative action is needed.  It appears that the criminal justice system is reacting and adjusting to this decision just as it has to many past watershed decisions.  Several U.S. District Courts have interpreted Blakely as striking down at least some aspects of the federal guidelines while other courts have ruled, as the Department of Justice maintains, that Blakely has no effect on the Federal Sentencing Guidelines.  In the coming weeks, the federal courts will begin to resolve these conflicts, and the Supreme Court will ultimately review these lower court decisions.  This litigation is not only beneficial - it is unavoidable because under the Constitution's ex post facto clause, criminal defendants may not be exposed to a harsher penalty based on a subsequently enacted law. 
  
            Indeed, a short term legislative ""fix"" may backfire by creating new complexity and litigation.  Any attempt to evade the Sixth Amendment right identified in Blakely will itself be challenged.  New legislation also raises new ex post facto and retroactivity issues.  The federal criminal justice system does not need additional and unnecessary complications. 
    
            As Justice Breyer noted in his dissent, ""The simple fact is that the design of any fair sentencing scheme must involve efforts to make practical compromises among competing goals.""  Striking the balance among those competing goals, and making the necessary compromises must be done carefully.  The proper response to Blakely is potentially as complex as health insurance reform, campaign finance reform or other matters that the Congress has appropriately taken time to refine.  It would be a grave mistake to jump onto one approach or another without carefully considering the implications for a host of fundamental constitutional protections that will flow from legislation to address the problems raised by Blakely.
  
            Blakely also gives Congress an opportunity to address the concerns raised in recent years about the fairness of the current federal sentencing system.  Last month, the American Bar Association ""Kennedy Commission,"" after ten months of study, unveiled an extensive critique of the federal sentencing regime, which, among other recommendations, called for the repeal of mandatory minimum sentences.  (This report will be voted on by the Association's House of Delegates in August).  The need for extensive and careful analysis in establishing the proper balance between competing values and interests within the criminal justice system is underscored by the Blakely decision, the responses of courts trying to follow Blakely, and the ABA's report. 
  
            The undersigned organizations commend you for turning to the hearing process to examine the scope of the issues involved.  But we urge you not to allow the short legislative calendar to spur the Congress to premature resolution of the issues Blakely has raised.  We look forward to participating in a comprehensive, bi-partisan process to determine how best to address sentencing in the wake of Blakely. 

  
American Civil Liberties Union
Brennan Center for Justice at NYU School of Law
Correctional Education Association 
Drug Policy Alliance 
Families Against Mandatory Minimums 
Justice Policy Institute 
Leadership Conference on Civil Rights 
Maryland Justice Coalition 
National Association of Criminal Defense Lawyers
National Association of Federal Defenders 
National Association of Sentencing Advocates 
National Black Police Association 
National Council of La Raza
National CURE (Citizens United for Rehabilitation of Errants)
Penal Reform International 
Rebecca Project for Human Rights
The Sentencing Project
Virginia C.U.R.E.