A concurrent resolution expressing the sense of Congress that the Supreme Court of the United States should act expeditiously to resolve the confusion and inconsistency in the Federal criminal justice system caused by its decision in Blakely v. Washington, and for other purposes.

Mr. President, the Supreme Court's decision last month in Blakely v. Washington has raised significant concerns about the validity of the Federal sentencing guidelines. Blakely held that sentencing procedures used by the State of Washington violated the defendant's constitutional right to a jury trial because they allowed the judge to impose an enhanced sentence based on facts that were neither found by a jury nor admitted by the defendant.

Within days of this decision, a split developed among the Federal district and circuit courts regarding the applicability of Blakely to the Federal Sentencing Guidelines, and one circuit court invoked a rarely used procedural mechanism to certify the question to the Supreme Court. Lower Federal courts continue to reach inconsistent positions on Blakely issues on virtually a daily basis. By all accounts, the confusion and uncertainty is frustrating the orderly administration of justice in courts across the country.

Two and one-half weeks after the Court issued its Blakely decision, the Senate Judiciary Committee convened a hearing to consider the implications of the decision for the Federal criminal justice system. As witness after witness described the disarray in the lower Federal courts, it became increasingly clear that the not-hypothetical application of Blakely to the Federal Sentencing Guidelines is threatening to undo 20 years of sentencing reform.

Twenty years after enactment of the Sentencing Reform Act of 1984, we must remind ourselves about the core values and principles that accounted for the bipartisan popularity of the original Federal Guidelines concept. The 1984 act was written and enacted against a history of racial, geographical, and other unfair disparities in sentencing. Congress sought to narrow these disparities while leaving judges enough discretion to do justice in the particular circumstances of each individual case. The task of harmonizing sentencing policies was deliberately placed in the hands of an independent, expert Sentencing Commission.

The Guidelines as originally conceived were about fairness, consistency, predictability, reasoned discretion, and minimizing the role of congressional politics and the ideology of the individual judge in sentencing. Blakely threatens a return to the bad old days of fully indeterminate sentencing when improper factors such as race, geography and the predilections of the sentencing judge could drastically affect the sentence. While I favor Federal judges exercising their discretion in pursuit of individual justice in individual cases, I do not want to see a return to the bad old days.

It may be that the Blakely decision was occasioned in part by recent tinkering with the Sentencing Reform Act that went too far. In recent years, Congress has seriously undermined the basic structure and fairness of the Federal Guidelines system through posturing and ideology. There has been a flood of legislation establishing mandatory minimum sentences for an ever-increasing number of offenses, determined by politics rather than any systemic analysis of the relative seriousness of different crimes. There has been ever-increasing pressure on the Sentencing Commission and on individual district court judges to increase Guidelines sentences. The culmination of these unfortunate trends was the so-called Feeney Amendment to the PROTECT Act, in which this Congress cut the Commission out altogether and rewrote large sections of the Guidelines manual, including commentary, and in which Congress also provided for a judicial ``black list'' to intimidate judges whose sentences were insufficiently draconian to suit the current Justice Department.

The Feeney Amendment was a direct assault on judicial independence. It was forced through the Congress with virtually no debate and without meaningful input from judges or practitioners. That process was particularly unfortunate given that the Republican majority's justification for the Feeney Amendment--a supposed ``crisis'' of downward departures--was unfounded. In fact, downward departure rates were well below the range contemplated by Congress when it authorized the Federal Sentencing Guidelines, except for departures requested by the Government itself. But having a false factual predicate for forcing significantly flawed congressional action has become all too familiar during the last few years.

The attitude underlying too many of these recent developments seems to be that politicians in Washington are better at sentencing than the Federal trial judges who preside over individual cases, and that longer sentences are always better. Somewhere along the line we appear to have forgotten that justice is not just about treating like cases alike; it is also about treating different cases differently.

These are issues that need to be examined in the future, in a thoughtful and deliberative fashion. The Sentencing Reform Act was the product of many years of work by members on both sides of the aisle. The current Sentencing Guidelines reflect more than a decade of work by the Sentencing Commission. If the Blakely decision ultimately requires some modification of our Federal sentencing system, we must proceed with extreme care. The last thing that any of us want is to risk making an already chaotic situation even worse by enacting ill-considered legislation that is itself subject to constitutional attack.

The Department of Justice, the Sentencing Commission, and other experts who testified before the Judiciary Committee have urged Congress not to act precipitously. I agree that corrective legislation is not immediately necessary and could be counter-productive, provided that the Supreme Court expeditiously clarifies the scope of its Blakely decision.

For these reasons, I am pleased to join Senator Hatch and other Judiciary Committee members in introducing a resolution regarding the Blakely decision. The words of the resolution are clear, unambiguous and unassailable: The Supreme Court of the United States should act expeditiously to resolve the current confusion and inconsistency in the Federal criminal justice system by promptly considering and ruling on the constitutionality of the Federal Sentencing Guidelines. Congress should take up and pass this resolution without delay.

Madam President, S. Con. Res. 130 expresses the sense of Congress that the Supreme Court should expedite consideration of the applicability of Blakely v. United States to the Federal Sentencing Guidelines.

As one of the original cosponsors of the Sentencing Reform Act of 1984, which created the United States Sentencing Commission, and a proponent of reducing sentencing disparity across the nation, I have a strong interest in preserving the integrity of the Federal guidelines against constitutional attack. Congress enacted the Sentencing Reform Act to reduce unwarranted disparity in Federal sentencing, including racial, geographical, and other unfair sentencing disparities by establishing standardized sentencing rules while leaving judges enough discretion to impose just sentences in appropriate cases.

As many here may already know, criminal defendants are routinely sentenced by judges who decide sentencing facts based upon a preponderance of the evidence standard. This has all changed in recent weeks. On June 24, 2004, in Blakely v. Washington, the Supreme Court held that any fact that increases the maximum penalty under a State statutory sentencing guidelines scheme must be presented to a jury and proved beyond a reasonable doubt even though the defendant's sentence falls below the statutory maximum sentence.

Although the Supreme Court explicitly stated in a footnote that ``The Federal Guidelines are not before us, and we express no opinion on them,'' it also characterized the government's amicus brief as questioning whether differences between the State and Federal sentencing schemes are constitutionally significant. The ambiguity apparent in Blakely and the strong suggestions by the dissent that it will apply to the Federal sentencing guidelines, has understandably created angst throughout the Federal justice system.

In just 2\1/2\ weeks after the Supreme Court's decision, we already had a split among the Federal circuit courts of appeal. In addition, at least two dozen lower Federal courts--and probably many more--have ruled the Federal Sentencing Guidelines unconstitutional. Some judges disregard the Federal sentencing guidelines in their entirety. Other judges apply mitigating sentencing factors but disregard any relevant aggravating factors. Still other judges are convening juries to decide some of these sentencing facts.

In fact, as I learned when the Judiciary Committee held a hearing on this very issue just last week, in my home State of Utah, the district judges adopted four different approaches to sentencing defendants after Blakely.

Let me briefly describe a couple of examples of the havoc caused by this Blakely decision. I'm sure we all recall Dwight Watson, the man who sat in a tractor last year outside the U.S. Capitol for 47 hours and threatened to blow up the area with organophosphate bombs. The day before the Blakely opinion, Mr. Watson was sentenced to a 6-year prison sentence. Less than a week after the Supreme Court's opinion, he was resentenced to 16 months, which was essentially time served. He is now a free man.

A defendant in West Virginia had an offense level that was off the sentencing charts. Although he would have been subject to a life sentence under the guidelines, the statutory maximum penalty was 20 years. He was given a 20-year sentence three days before Blakely was decided. A week later, his sentence was drastically reduced to 12 months. The judge did not rely on any relevant conduct or any sentencing enhancements in calculating the defendant's sentence. In other words, he only applied a portion of the sentencing guidelines-- those that he thought remained valid after Blakely.

The concurrent resolution I introduce today urges the Supreme Court to act expeditiously to resolve whether the Federal sentencing guidelines can be constitutionally applied in light of Blakely v. Washington. While I wish we could have done more, unfortunately, we were unable to do so in such a short period of time.

As we go forward, I believe we should adopt legislation that would render the Federal sentencing guidelines constitutional regardless of whether Blakely applies. Unfortunately, while I have worked diligently with my colleagues on both sides of the aisle and in both Houses, we simply just ran out of time. While I hope that the Supreme Court will find application of the Federal sentencing guidelines constitutional under the 6th Amendment, I will continue to work with my colleagues over the next several months in preparation of a contingency plan to ensure that regardless of what the Supreme Court decides, that we will be able to preserve a system that promotes uniformity and reduces sentencing disparity across this country.

Mr. President, I regret that the President and the Republican leadership in the Senate continue to choose division over cooperation and confrontation over consensus on the Presidents' most controversial judicial nominees. Senators can work together, Republicans and Democrats. The conflict we are experiencing on the Senate floor, which has the collateral consequence of disrupting important and unfinished work of the Senate, is by Republican partisan design. It is bad for the Senate and the country.

Earlier this morning I was at the White House for the signing of the Law Enforcement Officers Safety Act. Senator Campbell and I were the lead sponsors in the Senate on this successful effort, which we know as the ``Steve Young Act'' to honor an outstanding law enforcement officer.

Another example of our bipartisan cooperation is the resolution the Senate passed unanimously last night regarding with the consequences of the Supreme Court's decision in the Blakely case and the need to clarify Federal criminal sentencing law, S. Con. Res. 130. The Senate has now said, consistent with the record we developed at our recent Judiciary Committee hearing, that the Supreme Court should expeditiously clarify the status of the Federal Sentencing Guidelines. The Second Circuit Court of Appeals urged expedited consideration. The Department of Justice is bringing cases to the Supreme Court and should seek expedited consideration to afford the opportunity needed to obtain that necessary guidance.

There are scores of other measures on the Senate Calendar of Business on which we should be acting and could have been acting this week. We still need to enact the Satellite Home Viewer Improvement Act, S. 2013; the Ag Workers bill, S. 1645; the Dream Act, S. 1545; the judicial pay raise, S. 1023, the Anti-Atrocity Act, S. 710; the authorization for mental health courts, S. 2107; and other needed legislation on which there is so much bipartisan agreement.

With all this to do, with the 13 appropriations bills as yet unfinished, without a budget, without serious oversight of significant problems, it is incredible

to me that the Republican Senate leadership is devoting this week to divisive cloture votes on controversial nominations. Why they choose to sow division rather than make progress on matters that could improve the lives of so many Americans across the country is for others to explain.

Criticism of this ``do-nothing'' Congress is becoming universal. Conservative writers who are more prone to promote the Republican agenda than criticize its leadership have even joined in the chorus. Maybe that explains this misguided exercise, maybe it is reaction to all the criticism and an effort to shore up the extreme right-wing of Republican support. I do not know.

I fear more and more that some want the Senate to become a wholly- owned subsidiary of this Presidency and the Federal courts to become an arm of the Republican Party. That is wrong, that is unwise, that is unsound. The American people need to say no and preserve this great democracy.

Rather than doing the people's business, the Senate is being forced into contrived stunts for partisan political purposes. I urge the Republican leadership to use the upcoming recess to learn about the Senate and its role in our Federal Government. Maybe read Master of the Senate, the extraordinary and award winning book by Robert Caro, or the Constitution of the United States.

The American people deserve better. The Senate deserves better. Senator Byrd has spoken to this situation. Senator Daschle, Senator Reid and all Democratic Senators have demonstrated over and over again our good faith and commitment to moving forward. Let us all, Republicans and Democrats, come back from the upcoming hiatus in our Senate proceedings with a commitment to find the common ground that Senator Daschle spoke about so well last month in the interests of the American people.

I ask unanimous consent the Senate proceed to the immediate consideration of S. Con. Res. 130.

Madam President, I ask unanimous consent the resolution be agreed to, the preamble be agreed to, the motion to reconsider be laid upon the table, and any statements related to this matter be printed in the Record.