Both the Congress and the Department of Justice moved this week to seek an expedited hearing from the US Supreme Court on the constitutionality of the federal sentencing guidelines. The federal criminal justice system has been in a state of chaos since the Supreme Court ruled late last month that Washington's state's sentencing guideline system was unconstitutional.
Although that ruling did not directly address the federal guidelines, federal judges in districts across the country have read it as implicitly applying to the federal guidelines and ruled them unconstitutional. Some judges have dramatically cut sentences and others have postponed sentencing pending clarification, while the Justice Department has begun urging federal prosecutors to rewrite indictments and to seek waivers from defendants where they would promise not to seek sentencing relief based on the Supreme Court decision.
In Blakely v. Washington, the Supreme Court held that any factor that increases a sentence beyond the maximum allowed by law must be proven before a jury. The practice in the federal courts since 1987 has been for judges to make findings of fact on factors that could increase sentences, such as the amount of a drug involved in an offense or whether a gun was used in the commission of a crime. As a result of Blakely and the earlier ruling on which it was based, the Supreme Court's 2000 decision in Apprendi v. New Jersey, more than 200,000 federal sentences handed down since Apprendi are now potentially subject to appeal.
Last week, the Senate Judiciary Committee held hearings on the matter, and this week the Senate passed by unanimous consent a resolution asking the Supreme Court to quickly resolve questions over the constitutionality of the sentencing guidelines. The House was expected to pass a similar resolution late this week. According to the Wall Street Journal, committee head Sen. Orrin Hatch (R-UT) was considering legislative remedies, but held off after committee witnesses warned of the dangers of a quick fix.
Congressional resolutions have no weight with the Supreme Court except to indicate how concerned legislators are, but the Justice Department's request Wednesday for an expedited hearing on two Blakely-related cases is more likely to result in quick action. Justice sent the pair of petitions to the Supreme Court seeking a September 13 hearing for oral arguments so the court could decide the issue at the beginning of its October term.
Appropriately enough, the two cases Justice wants the Supreme Court to review are drug cases. Both Duncan Fanfan of Massachusetts and Freddie Booker of Wisconsin were sentenced to lesser terms by judges who ruled that the Blakely decision limited their ability to impose longer sentences based on facts not heard by a jury.
A quick review is necessary to avoid "an impending crisis in the administration of criminal justice in the federal courts," wrote Solicitor General Paul Clement. "Even several weeks of delay would result in additional hardship" for courts and defendants, Clements wrote, although it is federal prosecutors and fans of ungodly long prison sentences who appear to have the most to lose.
The Supreme Court rarely hears cases on an expedited basis, but it did so last year with the campaign finance law. And now, all three branches of the federal government have weighted in seeking quick review on the sentencing fracas. The Supreme Court has now given defense attorneys two weeks to respond to the Justice Department filings, which is a pretty strong sign it will accept the cases for an expedited ruling.