The Debate I - Sentencing Guidelines

While the campaign is raging, other news continues to happen. One bit of legal news on my radar screen because of a pro bono case I'm doing is the fate of the federal Sentencing Guidelines, particularly as they are applied to defendants convicted of drug trafficking crimes. The Guidelines prescribe (via a table) certain numbers of months of incarceration corresponding to certain quantities of drugs involved in the crime. Typically, however, a United States Attorney will indict a drug dealer for conspiring to sell "5 or more" or "50 or more" grams of crack cocaine, but then the Judge, in the sentencing phase, will find that the "relevant conduct" of the offender is a hundred or a thousand times as much, and sentence accordingly. Last summer, the Supreme Court called into question this kind of judicial fact-finding under a parallel Washington state sentencing guidelines scheme as violating the Sixth Amendment's right to a jury trial in criminal proceedings. See Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2431, ___ L.Ed.2d ___ (2004),. The Seventh Circuit extended this analysis to the federal guidelines in United States v. Booker, 375 F.3d 508 (7th Cir. 2004), and this case is now up to the Supreme Court on an expedited schedule. Oral argument was last Monday.

This is extraordinarily important. If the Supreme Court upholds Booker, literally hundreds of thousands of federal prisoners will have to be resentenced. Then, the government will have to come up with some new way to sentence drug crimes that will pass constitutional muster.

There has been practically no talk this campaign season about "law and order" issues, which is odd, considering that Kerry is anti-death penalty. Someone should ask the candidates: "If the Supreme Court throws out the federal sentencing guidelines, what do you propose to do?"