Blakely, the Kennedy Commission, and Beyond

The Supreme Court's recent decision in Blakely v. Washington has cast doubt on the constitutionality of the federal sentencing guidelines and numerous state sentencing laws. The ruling struck down the Washington State guideline system in which sentences could be lengthened based on judicial findings rather than on the basis of facts reflected in the jury's verdict or admitted by the defendant. The Court is expected to address the scope of Blakely in the Booker and Fanfan cases, scheduled for argument on October 4, 2004.

At the same time, two other developments may influence the sentencing policy debate. The American Bar Association's Justice Kennedy Commission has issued sweeping recommendations regarding state and federal sentencing policies, including the repeal of mandatory sentencing laws and steps to eliminate racial and ethnic bias in the criminal justice system. And the bipartisan "Second Chance Act" (H.R. 4676), introduced in response to President Bush's call for improved efforts to help individuals released from prison, encourages corrections officials to reduce crime by improving the transition from a prison sentence to community supervision.

This confluence of events presents an opportunity for thoughtful reconsideration of American sentencing policies—not only their legality, but also their appropriateness and the potential for increasing their effectiveness.

On September 14, 2004, OSI's Watching Justice project and the Constitution Project hosted a panel discussion on the future of state and federal sentencing policies in light of these important developments. The discussion, held at the National Press Club, was facilitated by Ronald H. Weich, a partner at Zuckerman Spaeder LLP and former chief counsel to Senator Kennedy on the Senate Judiciary Committee.

Panelists:

-Mark Bergstrom, Executive Director, Pennsylvania Sentencing Commission
-Julie Fernandes, Policy Analyst, Leadership Conference on Civil Rights
-Paul Friedman, Judge, U.S. District Court for the District of Columbia
-Carmen Hernandez, Vice President, National Association of Criminal Defense Lawyers
-Glenn Ivey, State's Attorney, Prince George's County, Maryland
-A.J. Kramer, Federal Public Defender for the District of Columbia
-Dean Reuter, Director of Practice Groups, the Federalist Society
-Deborah Rhodes, Counselor to the Assistant Attorney General, Criminal Division, Department of Justice
-Stephen Saltzburg, Wallace and Beverley Woodbury University Professor, George Washington University School of Law
-David Yellen, Max Schmertz Distinguished Professor, Hofstra University School of Law (Reporter for the Constitution Project's Sentencing Initiative)

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The Constitution Project seeks to formulate bipartisan solutions to contemporary constitutional and legal issues by combining high-level scholarship and public education. It is based at the Georgetown University Public Policy Institute, Washington, DC. For more information go to www.ConstitutionProject.org.

Watching Justice is a non-partisan website that monitors the U.S. Department of Justice (DOJ), offering regularly updated and comprehensive information to the public about how the DOJ administers justice in America. Watching Justice is a project of the Open Society Institute's U.S. Programs, which is part of the Soros foundations network. Sign up for Watching Justice's newsletter and updates: www.WatchingJustice.org.