Hoist with their Own Petard?

Abstract

In 2003, Congress and the Department of Justice tried to increase their control over the United States Sentencing Commission and federal sentencing generally. Congress appeared to have achieved this goal when it passed the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (“PROTECT Act”), which resulted in reduced grounds for downward departures, Congressionally-revised text of the Federal Sentencing Guidelines, and a constrained Sentencing Commission potentially devoid of judges. Yet progovernment interpretations of the PROTECT Act may have been premature because the Supreme Court has now struck down parts of Washington State’s legislativelyenacted sentencing guidelines in Blakely v. Washington. In an effort to save the Federal Sentencing Guidelines from Blakely’s grasp, the Department of Justice has emphasized that they are administratively enacted, in contrast to Washington’s legislatively-enacted guidelines. As a factual matter, however, the PROTECT Act blurred the federal administrative versus legislative distinction. Thus, Congress and the Department – the architects of the PROTECT Act – may find themselves hoist with their own petard.