The Case for Rapid Congressional Action in Response to Blakely V. Washington

Abstract

Soon after the decision of the U.S. Supreme Court in Blakely v. Washington, which invalidated the Washington state sentencing guidelines and cast doubt on the constitutionality of the Federal Sentencing Guidelines, the Senate Judiciary Committee held a hearing on "Blakely v. Washington and the Future of the Federal Sentencing Guidelines." Witnesses from the U.S. Department of Justice, the U.S. Sentencing Commission, and the judiciary downplayed the seriousness of the situation and urged caution in any congressional action. Concerned that the situation in the courts was more dire than the institutional witnesses had been willing to admit, Professor Frank Bowman subsequently sent the following memorandum to the Sentencing Commission, the Justice Department and others. It analyzes the case for a prompt legislative response to Blakely, with particular emphasis on the proposal offered by Professor Bowman several days after the Blakely decision, which is reproduced at 16 Federal Sentencing Reporter 364 (June 2004), and also on SSRN.

Keywords: Sentencing, federal sentencing guidelines, Blakely v Washington, criminal law

JEL Classification: K14, K10