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Board Resolution ~ 07/31/2004

Regarding the Federal Sentencing System

Resolution of the Board of Directors of the National Association of Criminal Defense Lawyers Regarding the Federal Sentencing System 

San Francisco, California

July 31, 2004

I. WHEREAS, contrary to the primary objective of the Sentencing Reform Act of 1984 to reduce “unwarranted sentencing disparity,” the most prominent effect of the Federal Sentencing Guidelines has been a dramatic shift in power from the judiciary to prosecutors, which has exacerbated systemic disparity, including racial and ethnic disparity;

II. WHEREAS, under the Federal Sentencing Guidelines’ anomalous system of so-called “real offense” sentencing, which establishes presumptive sentencing ranges based on the defendant’s “relevant conduct,” uncharged allegations and allegations that may have been rejected by a jury are relied upon to increase significantly the defendant’s sentence without the basic procedural protections of a trial;

III. WHEREAS the absence of meaningful procedural protections at the sentencing stage, including the consideration of hearsay and the low preponderance-of-the-evidence standard that applies, seriously undermines the reliability and fairness of the fact-finding process and induce undue reliance on the prosecutor’s version of the offense conduct;

IV. WHEREAS the procedural protections that attend a fair jury trial -- including the right to confront adverse witnesses, the right that the jury consider only relevant and competent evidence, the right to present a full and fair defense, and the right to compulsory process for obtaining witnesses in the defendant’s favor -- are critical to the reliability and fairness of the fact-finding process;

V. WHEREAS the U.S. Supreme Court in Apprendi v. New Jersey and Blakely v. Washington recognized the constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to a sentence, and there is no constitutionally significant distinction between the sentencing scheme invalidated in Blakely and the Federal Sentencing Guidelines;

VI. WHEREAS current law does not authorize inclusion in the indictment and jury determination of facts “legally essential to the punishment” that are not statutory offense elements, and the submission of such prejudicial information to the jury would violate the defendant’s right to a fair trial;

VII. WHEREAS “the need to give intelligible content to the right of jury trial” requires that Congress, the Judicial Conference, and the Sentencing Commission promulgate changes to current laws so as to require that “facts legally essential to [a] sentence” be charged and proved to a jury beyond a reasonable doubt; and

VIII. WHEREAS reform of the federal sentencing laws, particularly disproportionate and racially discriminatory mandatory minimum sentences, is long overdue;


I. That the National Association of Criminal Defense Lawyers takes the position that the Federal Sentencing Guidelines violate the 6th Amendment jury-trial guarantee and the 5th Amendment due process right to proof beyond a reasonable doubt, as enunciated in Apprendi v. New Jersey and Blakely v. Washington, and this position will be reflected in amicus curiae briefs filed on behalf of the Association;

II. That the Association opposes Department of Justice policies directing that indictments include Guidelines upward adjustments and upward departure factors, a practice not authorized under current law, and directing that prosecutors “seek to obtain plea agreements that contain waivers of all rights under Blakely”;

III. That the Association will advocate that Congress, the Judicial Conference, and the Sentencing Commission amend existing laws as necessary to give meaning to the “right to insist that the prosecutor prove to a jury all facts legally essential to the punishment” and to ensure judicial discretion to fairly mitigate punishment; and

IV. That the Association will advocate that Congress take full advantage of this extraordinary opportunity to correct longstanding flaws in the federal sentencing system by appointing a non-partisan commission -- comprised of practitioners, prosecutors, judges and academics -- to study the future of federal sentencing in the wake of Blakely v. Washington.

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