The threat of new mandatories

Many folks who recognize flaws in the federal sentencing guidelines are not ready to celebrate their possible (partial) demise in Booker and Fanfan because of fear that Congress will replace the guidelines with an array of harsh mandatory minimum sentencing statutes. That fear might be quite well-founded, especially with the news that H.R. 4547, a federal sentencing bill discussed previously here and described by others here as Feeney II, is moving through the legislative process.

H.R. 4547, which carries the title "Defending America’s Most Vulnerable: Safe Access to Drug Treatment and Child Protection Act of 2004," is styled as a measure to promote drug treatment while protecting children. But the bill includes a broad slate of harsh mandatory minimum sentences for a wide range of drug crimes. Families Against Mandatory Minimums explains the bill's most troublesome features here and provides a full analysis of the bill's provisions here.

This morning, H.R. 4547 is being marked up in subcommittee, and the folks at FAMM have indicated that they are expecting the bill to pass out of subcommittee. I will be interested to hear if the Blakely debate, good or bad, has any impact on this process. It strikes me that, even though Harris right now remains good law for the proposition that facts triggering mandatory minimums do not have to be proven to a jury beyond a reasonable doubt, I would think a wise and shrewd legislator might seek to build such procedures into the enactment of any new sentencing structures.

UPDATE: From a GFOB ("Great Friend of Blog"), I have heard that the "subcommittee as expected voted to report H.R. 4547 to the full House Judiciary Committee and staff on both sides said that opponents of the bill 'held their fire' for what is to be a fight in the full committee, sometime next week." The GFOB also sent along a group letter on the bill (downloadable below), which raises a host of Blakely concerns in addition to criticizing the substance of the bill.
Download lccr_hr_4547_letter_92204.dot