Department of Justice Response to Supreme Court Decision in Blakely

This policy memo was issued by DOJ on July 2 regarding the United States Supreme Court’s ruling in Blakely.

No major suprise here.

The DOJ memo begins as follows:

The position of the United States is that the rule announced in Blakely does not apply to the Federal Sentencing Guidelines, and that the Guidelines may continue to be constitutionally applied in their intended fashion, i.e., through factfinding by a judge, under the preponderance of the evidence standard, at sentencing. The government’s legal argument, which will be developed more fully in a model brief that the Criminal Division will distribute, is that the lower federal courts are not free to invalidate the Guidelines given the prior Supreme Court decisions upholding their constitutionality, and that, on the merits, the Guidelines are distinguishable from the system invalidated in Blakely. All federal prosecutors should therefore argue in favor of the continued constitutional validity of the Sentencing Guidelines as a system requiring the imposition of sentences by judges. If the court rules that Blakely does invalidate all or part of the Guidelines system, prosecutors should preserve an objection. The Department of Justice has traditionally adhered to the principle that it will defend the constitutionality of Acts of Congress in all but the rarest of instances. The government vindicates that principle here by defending the constitutionality of the Sentencing Guidelines.

For more information: Judge David Finn