Coalition Letter to the House Judiciary Committee Subcommittee on Crime, Terrorism and Homeland Security Opposing H.R. 4547

The Honorable Howard Coble
Chairman, Subcommittee on Crime, 
Terrorism and Homeland Security
Committee on the Judiciary 

The Honorable Robert Scott
Ranking Member, Subcommittee on Crime, 
Terrorism and Homeland Security
Committee on the Judiciary 

Re:  H.R. 4547 Defending America's Most Vulnerable:  Safe Access to Drug Treatment and Child Protection Act 

Dear Congressmen Coble and Scott:

The Crime Subcommittee is scheduled to consider H.R. 4547, a bill to expand mandatory minimum penalties in certain drug cases.  The undersigned organizations write to express our strong opposition to this legislation.

The most immediate reason why the Subcommittee should not act favorably on H.R. 4547 is that it would add confusion to the currently stressed federal sentencing system.  H.R. 4547 was introduced prior to the Supreme Court's recent decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), which held that the Washington State sentencing guidelines system violates the Sixth Amendment right to trial by jury.  On October 4, the Court will hear argument in two cases (U.S. v. Booker and U.S. v. Fanfan) presenting the question of whether Blakely applies to the federal sentencing system.  If the Court applies Blakely to the federal guidelines, many of the provisions in H.R. 4547 would make no sense and others would themselves be unconstitutional.  It is beyond dispute that H.R. 4547 will be met with numerous legal challenges, adding to the uncertainty pervading federal sentencing in the wake of the Blakely decision.  

H.R. 4547, like the PROTECT Act of 2003, includes congressionally rewritten guidelines.  We oppose such measures because they flout the independent expertise of the Sentencing Commission as well as the process for guidelines-writing established by the Sentencing Reform Act.  Further, we note that in defending the Constitutionality of the guidelines in Booker and Fanfan, the Solicitor General relies heavily on the argument that the federal guidelines are the product of an independent judicial branch agency, and thus not statutory.  Yet passage of this bill - or even favorable Committee action - could undermine the legal position of the United States in the pending Supreme Court litigation.

In addition, the bill renders the guidelines more vulnerable to a Blakely challenge by expanding the scope of ""relevant conduct"" to include co-conspirators' conduct before the defendant joined the conspiracy, regardless of whether a conspiracy is actually charged.  The Blakely holding calls into question the validity of the relevant conduct guideline altogether.   It would be reckless to expand the impact of relevant conduct at this time. 

Beyond these Blakely-related concerns, H.R. 4547 is flawed in our view because it creates new mandatory minimum sentencing laws, expands existing mandatory sentencing provisions, and drastically curbs the scope of the 1994 safety valve, which was designed to limit the application of mandatory minimums in cases involving low-level, non-violent drug offenders.  Our groups have long opposed mandatory sentencing laws because they result in unjust sentences, contribute to racial disparities in the criminal justice system, and are inconsistent with the guideline system Congress established in the Sentencing Reform Act of 1984.

Rather than exacerbate flaws in the current sentencing system by enacting H.R. 4547, this Committee can lead Congress in considering post-Blakely reforms.  This process should be guided by several principles:

• Ensure balance.  One attribute of the current guideline system is that it constrains judicial discretion both downward and upward from a presumptive sentencing range.  In contrast, mandatory sentencing laws only prevent the exercise of downward discretion.  Our groups will oppose any sentencing system that does not limit excessive harshness as well as excessive leniency. 
• Preserve judicial discretion.  The widespread use of uncharged and even acquitted conduct in the current guideline system undermines a defendant's Sixth Amendment right to a jury trial.  But Congress should not redress that flaw by eliminating judicial discretion altogether.  A fair and effective sentencing system should divide sentencing responsibility among the legislature, the jury and the judge.  The legislature defines the crime, the jury decides all elements of the offense, but in the end, only an independent judge can impose a just sentence.  
• Redress racial disparities.  Under current law, draconian statutory and guideline penalties are triggered by possession or sale of a small amount of crack cocaine - one hundred times less crack cocaine than the amount of powder cocaine that triggers the same penalties.  The Sentencing Commission has twice concluded that there is no empirical basis for the 100 to -1 ratio, yet it persists.  Meanwhile, in fiscal year 2000, 93.7% of defendants convicted of federal crack distribution offenses were black or Hispanic and only 5.6% were white.  This unfair situation is part of a pattern of inequity that threatens the credibility of the justice system in minority communities.  Laws and practices such as these that fuel racial disparity must be addressed in any post-Blakely reform package.

If you have any questions or would like more information, please contact Julie Fernandes, LCCR Senior Policy Analyst.

Thank you for your consideration.

Sincerely,

Wade Henderson
Leadership Conference on Civil Rights                   

Hilary Shelton 
NAACP

Julie Stewart
Families Against Mandatory Minimums                             

Laura Murphy 
American Civil Liberties Union

Charles Kamasaki
National Council of La Raza

Barry Scheck
National Association of Criminal Defense Lawyers