Pubdate: Mon, 26 Jul 2004
Source: Oklahoman, The (OK)
Copyright: 2004 The Oklahoma Publishing Co.
Contact:  http://www.oklahoman.com/
Details: http://www.mapinc.org/media/318
Author: Michael Baker

CRIMINAL SENTENCING TAKES GUESSWORK

U.S. District Judge Tim Leonard doled out multiple-choice sentences last 
week, giving a bank robber three prison term options. Leonard has given 
such sentences four other times in the past few weeks.

He is hoping the U.S. Supreme Court soon will clarify which sentence is 
constitutional, given the court's recent ruling striking down tough 
sentencing laws in Washington state.

"Based upon the uncertainty of the Supreme Court and the impact of the 
Blakely v. Washington case, the court is going to impose three sentences," 
Leonard said Wednesday from the bench. "Trying to guess what the Supreme 
Court might or might not do is a rather precarious position sentencing 
judges are in."

The law occasionally ripples with change, but the June 24 decision 
expanding the right of a jury trial to sentencing issues has caused a tidal 
wave.

The high court's Blakely ruling has left a wake of divided courts and 
lightly treading prosecutors. Defense attorneys are clamoring to rock the 
boat, and thousands of convicts are fishing for shorter prison terms.

"This is a much bigger flux than usual," said Barry L. Johnson, a professor 
at Oklahoma City University School of Law. "What's happening now, I think a 
lot of people are describing as utter chaos."

Guidelines called into question U.S. district and appellate court judges 
have ruled that since Washington state's sentencing system resembles 
federal rules, the high court's decision makes U.S. sentencing guidelines 
unconstitutional. Other judges have found that Blakely doesn't affect 
federal sentencing.

"Even the judges within this district are taking different approaches," 
Leonard said.

"In my 20 years of practicing law, I have never seen a decision that caused 
more confusion," said U.S. Attorney Robert McCampbell, head prosecutor for 
Oklahoma's Western District.

Already, two petitions have been filed asking the Supreme Court to clarify 
how the Blakely decision affects federal law. Unless the court convenes 
early, the soonest it would consider the petitions is October.

A legislative fix Legislators are getting into the mix. Orrin Hatch, 
R-Utah, chairman of the U.S. Senate Judiciary Committee, said he is looking 
for a legislative way to stem the tide of a system "run amok."

Under federal guidelines, judges can add time to a defendant's sentence if 
they find a preponderance of the evidence shows an aggravating factor, such 
as use of a gun, to be true.

Some judges, such as Leonard, are hesitant to guess the effect of the 
Supreme Court's decision regarding Washington state law on the federal 
guidelines.

"What I'm trying to do with alternative sentences is avoid resentencing 
based on what the Supreme Court may do," said Leonard, who has been on the 
bench for 12 years. "It could have the largest ramifications of any 
decision since I've been on the bench."

Wednesday, each sentence Leonard gave Eric Justin Moses, who had pleaded 
guilty to four bank robberies, reflected a different interpretation of the 
Blakely case:

A. Six years and six months, if current guidelines are constitutional and 
the judge can add time for an enhancement of threatening death during the 
robberies.

B. Five years and 11 months if the enhancement is unconstitutional.

C. Six years and six months if all federal guidelines are unconstitutional 
and sentencing is left to the judge's discretion.

About 8,000 cases are pending appeal on sentencing issues, and more than 
50,000 cases await sentencing in district courts, said McCampbell, who is 
chairman of the U.S. Attorney General's Advisory Committee's Sentencing 
Guidelines Subcommittee.

A paralyzed system Most sentencings in Oklahoma City federal court were 
rescheduled in the first weeks after the Blakely decision.

"Essentially, the system has been paralyzed in the short term, with the 
long-term implications yet to be determined," according to a survey 
presented to the U.S. Senate Judiciary Committee.

Thousands of cases are resurfacing as convicts try to get long sentences 
thrown out.

Michael Snider, the first person convicted in Oklahoma to argue a Blakely 
defense, says his three-decade sentence should be reduced. He filed his 
pending appeal with the Oklahoma City federal court this month.

In 1996, a jury found Snider, 39, guilty on six counts of making and 
selling of methamphetamine. Snider received a 30-year prison term, which 
included six years because the judge believed Snider was a conspiracy leader.

McCampbell said Blakely would not affect Snider's case because Supreme 
Court precedent precludes the ruling from applying to cases that have 
finished the appeals process.

Plea bargaining problem A major effect of the Blakely decision has been to 
halt plea bargaining, said Tony Lacy, an assistant federal public defender 
in Oklahoma City.

"That's the biggest problem right now," Lacy said. "With all the variables, 
why would you plea and waive the right to appeal? The ambiguity of not 
knowing what you're losing gives one great hesitation in signing a contract."

If plea bargains come to a halt, the federal court system could become 
backlogged. In more than 95 percent of federal cases, defendants enter 
guilty pleas.

Defense attorneys across the country say now is a perfect opportunity to 
change draconian sentencing laws.

"We believe we have before us an opportunity, unprecedented since 1984, to 
create a truly just and rational federal sentencing guidelines scheme," 
E.E. Edwards and Barry Scheck of the National Association of Criminal 
Defense Lawyers wrote in a letter to Attorney General John Ashcroft and the 
administrative chief of the U.S. federal courts, L. Ralph Mecham.

If the Supreme Court decides federal guidelines are unconstitutional, the 
effect on American justice could be bigger than the 1966 Miranda ruling, 
which reinforced the rights to remain silent and to have an attorney, 
professor Johnson said.

"Miranda doesn't apply to every single federal conviction and many, many 
state convictions the way Blakely does," Johnson said. "This is a much 
bigger deal than a lot of the other high-profile cases that we think about 
in the criminal justice system."
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