News Release

Statement of Barry C. Scheck President-Elect, National Association of Criminal Defense Lawyers On Blakely v. Washington

Washington, DC (June 24, 2004) -- Beyond a doubt, today’s decision in Blakely spells the end of sentencing guidelines -- as we know them. The decision does not represent a step backward from the goal of sentencing reform, but a great leap forward, because it stands for the proposition that no defendant in a U.S. court will be punished for an unproven crime.

The key issue in Blakely was that the judge found a fact, after the defendant’s plea, that increased his sentence by almost three years. It has always been NACDL''s position that facts that substantially increase a defendant's sentence should be admitted by the defendant at his guilty plea or found by a jury beyond a reasonable doubt. Today’s decision is a logical application of that principle. As Justice Scalia said in the opinion of the Court, it is too much to believe that the National Association of Criminal Defense Lawyers was “duped” into taking the wrong side on such an important issue as fairness in criminal proceedings.

In NACDL’s friend of the court brief, authors Adam Steinman, Sheryl Gordon McCloud and David M. Porter wrote that "failing to apply Apprendi to exceptional sentences upward creates a situation where a defendant may be punished for a crime that no jury has considered -- much less delivered a verdict of conviction -- and for which the ... reasonable doubt standard has not and cannot be met."

Justice O’Connor, dissenting, wrote that the effect of today’s decision would be less uniformity of sentencing and that “20 years of sentencing reform are all but lost.” Under the federal sentencing guidelines, a defendant who is charged with 10 offenses and convicted only of one of the charges can still be sentenced as if he had been convicted of all 10. If by “sentencing reform” O’Connor means that a defendant, a judge, and even a prosecutor who worked together to craft a reasonable plea bargain can be blindsided by an unproven allegation at sentencing that might add 3 or 10 or 30 years to a defendant’s bargained-for sentence, then perhaps she is right. But if sentencing reform is to mean truth in sentencing, where only the facts proven or pled to are punished, then her despair is misplaced.

Today’s case does not condemn sentencing guidelines to death. In fact, we believe that they just got a great deal healthier. 

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NACDL Communications Department

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.