Pubdate: Tue, 28 Dec 2004
Source: Wall Street Journal (US)
Section: Page A1
Copyright: 2004 Dow Jones & Company, Inc.
Contact:  http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Author: Laurie P. Cohen

DOUBLE STANDARD

In Wake Of Ruling, Disarray Plagues Federal Sentencing

Supreme Court's June Verdict Leaves Judges Confused; Some Issue Two Decisions

Mr. Pena Makes An Objection

NEW YORK -- At Manhattan's federal courthouse, Judge Shira Scheindlin has 
had a new policy since August: She doesn't sentence any defendants unless 
they ask for it. Three floors down, Judge Jed Rakoff has a different but 
equally unusual policy: He gives every defendant two sentences, based on 
two different sets of rules.

Disarray has enveloped the federal court system for the past six months 
since a Supreme Court ruling hinted that the guidelines governing federal 
sentences may be unconstitutional. As federal judges wait, and wait some 
more, for the divided high court to deliver a final verdict, they have come 
up with a myriad of ways to sentence defendants.

"To the general public, this signifies a criminal justice system run amok," 
says J.P. Stadtmueller, a federal judge in Milwaukee.

The Supreme Court ruling on June 24 in the Blakely v. Washington case 
struck down a system used in the state of Washington that guides judges to 
boost sentences based on exacerbating factors in a crime -- for example, 
that the defendant played a leadership role. The Supreme Court said it's 
unconstitutional to do this unless the defendant has admitted to the 
exacerbating factor or it has been found true by a jury beyond a reasonable 
doubt.

While the court's ruling technically applied only to Washington state, many 
lawyers and judges believe it effectively makes the federal sentencing 
guidelines unconstitutional too, since they're similar to Washington's. The 
Supreme Court is now hearing two cases involving the federal guidelines, 
which are used to sentence 60,000 defendants a year. Many expected the high 
court to rule this year, but it didn't. The earliest next possible decision 
date is Jan. 11.

If the Supreme Court rules that its verdict in Blakely applies to the 
federal guidelines as well, many legal experts expect it to strike down the 
entire guidelines system. Another option would be to throw out only those 
parts of the guidelines that deal with sentencing "enhancements."

In the meantime, federal appeals courts have given varying instructions to 
district courts. Some have ordered district judges to carry on as if 
nothing has changed. Two appeals courts have ruled the exact opposite: They 
say the federal guidelines are now unconstitutional until further notice 
and judges shouldn't follow them as written. Still others say it's up to 
the individual judge.

The Second Circuit, which includes New York, is one of those that has 
ordered district judges in the circuit to keep using the federal guidelines 
until the Supreme Court makes up its mind. In Manhattan, Judge Scheindlin 
has refused. "The Second Circuit was telling me to act as if June hadn't 
come and I said I just can't do that," she says. Her solution: For the time 
being, sentence no one.

Sentencing under the guidelines requires judges to do considerable work to 
figure out which "enhancements" apply to a defendant. If the Supreme Court 
shoots down the guidelines, Judge Scheindlin notes, all that work would be 
wasted. "Who wants to do it again?" she asks. When a defendant agrees, 
judges can defer sentences indefinitely. So long as the defendant is in 
jail awaiting sentencing, this is usually fine with prosecutors. In one 
case a defendant asked Judge Scheindlin to be sentenced right away, but the 
others were willing to wait because they figured the guidelines could be 
struck down and they would have a better shot at a light sentence later.

For his part, Judge Rakoff thought about putting off sentencing but worried 
that he'd be stuck with a huge backlog. "If you put off 15 sentences, 
that's eight days' work," he says. He is issuing one sentence that assumes 
that the guidelines will remain in effect and another that will take effect 
if they don't. For the moment, it's the first sentence that counts.

Many judges have long criticized the guidelines, calling them too rigid and 
harsh, and welcome the chance to use their discretion. Federal Judge Bill 
Wilson in Little Rock, Ark., says drug penalties are "far too severe" in 
many instances. His circuit hasn't ruled on the constitutionality of the 
guidelines, thus giving him leeway to sentence outside of them. In several 
recent drug cases he has given lighter sentences than the guidelines would 
prescribe. However, in another recent case involving a defendant who dumped 
waste into a stream, Judge Wilson issued a sentence that was tougher than 
the one called for by the guidelines. Judge Wilson also issues sentences 
that presume the guidelines are constitutional. He says that about 
two-thirds of the time, the two sentences are very similar.

In California, which is in one of the two circuits that has ruled the 
federal guidelines unconstitutional, one high-profile defendant reaped a 
windfall. Richard I. Berger, the former chief executive of Craig Consumer 
Electronics, was convicted of bilking banks and investors by presenting 
false financial figures. Los Angeles federal prosecutors recommended a 
sentence of more than eight years, alleging that Mr. Berger played a 
leadership role in the fraud and was responsible for millions of dollars in 
losses to investors.

But Judge Robert Takasugi said he was "constrained" from boosting Mr. 
Berger's sentence because of these factors, which the jury hadn't ruled on. 
He sentenced Mr. Berger in September to just six months in prison.

The hope for leniency extends to prisoners who have already been sentenced 
under the federal guidelines. If the Supreme Court rules that the 
guidelines are unconstitutional it might also order that the ruling be 
applied retroactively, meaning some prisoners could try to get their 
sentences reduced.

Deluged by prisoner questions, the Federal Bureau of Prisons issued a list 
of "talking points" this month. "You are probably aware" of the coming 
Supreme Court ruling, wardens are advised to tell inmates. "It is essential 
that you understand nothing will happen automatically with your case as a 
result of the Supreme Court's decision." Instead, the memo explains, any 
revision of sentences would be up to individual sentencing courts.

If the federal guidelines are judged unconstitutional, one suggested fix is 
to have juries rule on all the factors that can enhance a sentence. As a 
temporary measure, the Justice Department has urged federal prosecutors to 
include these sentencing factors in their indictments.

Ellyn Marcus Lindsay, an assistant U.S. attorney in Los Angeles, is 
spending days rewriting old indictments to conform with the Justice 
Department's recommendation. "For six months, I've been dealing with the 
mess that Blakely created," she says.

In Sioux Falls, S.D., Chief Judge Lawrence L. Piersol says he is asking 
juries to find drug quantities and that is "simple for them." But financial 
fraud cases are another matter. Judge John C. Coughenour, chief judge of 
the Western District of Washington, yesterday completed an eight-week trial 
involving 87 counts of tax evasion and other fraud. The jurors came back 
with guilty verdicts against six defendants. "It's not going to be a simple 
task for a jury to conclude how much the tax loss was," says Judge Coughenour.

In parts of the country where the guidelines are still in effect, one 
tactic of prosecutors is to press defendants to sign "Blakely waivers" 
along with a guilty plea. This waiver adds an extra layer of security to 
the standard pledge in which the defendant promises not to contest the 
sentence resulting from the guilty plea. The waiver says that even if the 
Supreme Court rules the guidelines unconstitutional, the pledge still holds 
- -- in other words, that the defendant can't use a high court ruling as an 
excuse to contest his sentence.

New York defense lawyer Robert Morvillo, who represented Martha Stewart in 
her criminal trial this year, balked when Brooklyn federal prosecutors 
asked one of his clients to sign a Blakely waiver in a recent tax-evasion 
case. "What if the Supreme Court declares the guidelines unconstitutional?" 
Mr. Morvillo says he responded. "How can you force a judge to sentence 
under an unconstitutional sentencing system and me to waive my client's 
rights? That would be malpractice." Mr. Morvillo successfully persuaded 
prosecutors to allow him to challenge the sentence if the Supreme Court 
declares the guidelines unconstitutional.

Roslynn Mauskopf, the U.S. attorney in Brooklyn, says defendants waive many 
rights when they plead guilty, including the right to a jury trial, and 
there is nothing special about waiving the right to appeal a sentence if 
the law changes. She notes that the Justice Department has encouraged 
prosecutors to seek Blakely waivers.

One of the nation's busiest federal courtrooms is in Laredo, Texas, where 
Judges Keith Ellison and George Kazen together sentence about 2,800 
defendants a year, mostly on drug or alien-smuggling charges. The appeals 
court of the Fifth Circuit, which includes Texas, is one of those that has 
directed judges to rule as if nothing has changed.

By 9 a.m. on a recent Wednesday, the third-floor courtroom in Laredo's new 
federal courthouse was packed with prosecutors, lawyers, handcuffed 
defendants and family members. Many of the defendants faced significant 
extra prison time because of enhancements based on the amount of drugs they 
smuggled or the number of aliens they tried to ferry across the border with 
Mexico, which is right across the Rio Grande from Laredo.

Public defenders in the region have been challenging the use of these 
enhancements based on the Supreme Court's Blakely ruling. Judge Ellison 
politely but firmly dismissed each challenge as he sentenced 14 defendants 
in just over three hours. "In our circuit, the guidelines are 
constitutional, so while your objection is noted for appeal, it is 
overruled," he told defendants and their lawyers.

Still, says Laredo defense lawyer Oscar O. Pena, "right now, if you're not 
making a Blakely objection, you're not doing your job." It's especially 
important, he says, "in situations where we know intuitively that we 
wouldn't punish a guy as much as the guidelines do."

On this day, Mr. Pena was representing a 19-year-old drug addict who was 
arrested in a warehouse that held four tons of marijuana. The young man 
claimed he had been hired to package the drugs . While out on bond, he 
failed a routine drug test. Fearful of being imprisoned before his 
sentencing, he cut off his electronic monitor bracelet and fled to Mexico. 
Days later, he returned and turned himself in to authorities in Laredo.

Judge Ellison ruled that the defendant's role in the marijuana distribution 
scheme was a minor one. Nonetheless he sentenced the defendant to three 
years and 10 months in prison, as the guidelines mandated. Mr. Pena thinks 
he might be able to get that reduced if the guidelines are overturned.

Judge Ellison says he often used to issue sentences below the range 
recommended in the guidelines. But last year a law called the Feeney 
Amendment passed by Congress demanded that judges who "depart downward" 
explain their rationale to the Justice Department in writing. Judge Ellison 
says he now departs downward only when prosecutors recommend it. In other 
cases, he typically sentences at the low end of the guidelines range.

One particularly thorny case involved 24-year-old Manuel De La Fuente, who 
pleaded guilty to possessing and intending to sell about 220 pounds of 
marijuana. While his sentencing for that crime was pending, he escaped from 
a San Antonio jail, only to be recaptured. The federal guidelines called 
for Mr. De La Fuente's drug sentence to be boosted because he obstructed 
justice by escaping -- even though he faced separate charges for the escape 
in San Antonio.

Homero Martinez, Mr. De La Fuente's lawyer, argued that it was unfair to 
punish his client twice for the escape. That argument prompted Judge 
Ellison to wonder aloud how such cases might be handled if the Supreme 
Court strikes down the federal guidelines in line with its Blakely ruling. 
"It really does raise an interesting Blakely question," he mused. "I'm 
wondering, under Blakely, what we do about post-indictment conduct. Would 
it have to be subject to a new indictment?"

Then the judge returned to the real world of the Fifth Circuit. He 
concluded that Mr. De La Fuente should have his prison time extended 
because of his escape and handed down a sentence in line with the 
prosecutors' request: 10 years and five months.

"We're going to proceed with this sentence today," Judge Ellison said. "But 
if the Supreme Court intervenes, we may have to revisit it."
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