News Release

Sentencing Guidelines Not Dead Yet

Washington, DC (July 9, 2004) -- Reports of the death of the federal sentencing guidelines are greatly exaggerated.

True, the Supreme Court’s June 24 decision in Blakely v. Washington has created much confusion in the federal courts about the continued viability of the U.S. Sentencing Guidelines. Many federal sentencing hearings of criminal defendants were continued or postponed while judges, prosecutors and defense lawyers studied the case and decided literally on a case-by-case basis whether the holding in Blakely – that the Sixth Amendment requires any fact which increases a defendant’s sentence above the statutory maximum for an offense must be proven to a jury beyond a reasonable doubt – applies in a given case.

Because of this ruling, courts have been proceeding in criminal cases on an ad hoc basis, with little in the way of guidance. Two courts have ruled the federal sentencing guidelines unconstitutional. Others have held only that certain aggravating factors that increase a defendant’s sentence violate Blakely. Clearly, something needs to be done. Emergency legislation, drafted in haste and passed without due deliberation, too often creates more problems than it solves. “Quick fixes” can have enormous costs.

For these reasons, E.E. (Bo) Edwards and Barry C. Scheck, President and President-Elect of the National Association of Criminal Defense Lawyers today invited the Justice Department and the Administrative Office of the United States Courts (A.O.) to join together with the defense bar to create an ad hoc study committee of judges, academics, prosecutors and defense lawyers to reconcile the federal sentencing system with Blakely.

“In anticipation of some eventual reconciliation of Blakely and the federal guidelines … what is needed now is a reasoned and dispassionate analysis of sentencing guidelines systems, federal and state,” Edwards and Scheck wrote in their letter to Attorney General John Ashcroft and A.O. Director L. Ralph Mecham. “A study could involve the voices and experiences of judges, prosecutors and defense lawyers from across the country to help determine the best way to reconcile the federal guidelines system with the requirements of the Sixth Amendment.” The study could also be of great use to the dozen or so states whose guideline systems may also be unconstitutional, they added.

The full text of the letter is on NACDL’s Web page,, at:$FILE/Ashcroft_Blakely_let_070804.pdf 

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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.