Panel 1 Senate hearing highlights

The Senate hearing's first panel just ended, and it is all so interesting and thoughtful I'm not sure I can summarize it effectively. This is a "must-see" event now and in repeats (at least for sentencing geeks like me). The opening statements by Senators Hatch, Leahy, Kennedy and Sessions were rich and generally balanced. And all the panel speakers were effective in spotting the many challenging issues post-Blakely, although no firm solutions were put forth.

There did seem to be, however, a general consensus that, in Judge William Sessions' words, the "sky is not falling." Commission Vice-Chair Steer stated that, based on an examination of USSC data, he thought "only a minority" of all federal cases had Blakely problems. And other witnesses stressed the many coping efforts that courts and prosecutors are employing.

All five witnesses counseled caution in any congressional response, and Leahy's first question clarified that noone on the panel was asking for immediate congressional intervention. However, Hatch's first question suggested he thinks there might be a "crisis" that needs to be addressed. And Senator Jeff Sessions asserted that Blakely was the most consequential case in American criminal history, which was creating a "chaotic" situation. (Senator Sessions was especially critical of the Supreme Court's Blakely ruling, and he seemed to come amazingly close to calling Justice Scalia an activist judge!)

But all the witnesses stressed in responses that a short-term fix was not essential, and perhaps not effective, to deal with any perceived "crisis." DOJ representative William Mercer stressed that the problems created by Blakely really was a case-by-case story, and he suggested that August might be the time when the dust had cleared enough to figure out whether a fix was necessary. (Also, DOJ's Mercer got a nice bit of lashing from Leahy for inconsistencies between DOJ's advocacy of the Feeney Amendment and its claim now that the independency of the USSC distinguishes the federal guidelines from the state guidelines struck down in Blakely. And then Kennedy started his question period by lamenting the way the Feeney Amendment was passed. He then forcefully asked Mercer if he supported the judge-specific reporting requirements in that legislation while suggesting that this provision should be re-considered. What goes around come around!)

Interestingly, Senator Durbin made a very nice capital punishment analogy at the start of his questioning: he highlighted that Illinois Governor Ryan's death penalty moratorium lead to a healthy re-thinking of capital punishment practices, and then suggested that Blakely can likewise lead to a healthy re-thinking of 20 years of federal guideline sentencing. He asked whether it was time for "a fresh look at the whole concept" of sentencing guidelines in the federal system, and wondered whether we "could get the the bottom of Blakely" without a complete re-examination of fairness in federal sentencing.

Finally, I got to hear Senator Hatch enter my co-authored written testimony into the record. Cool!