Pubdate: Thu, 13 Jan 2005
Source: New York Times (NY)
Copyright: 2005 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Linda Greenhouse
Note: The 124 page ruling is on line as a .pdf document at 
http://www.november.org/Blakely/BookerDecision.pdf
Also: to help understand the decision the blog of Douglas A. Berman, 
Professor of Law has been 
recommended  http://sentencing.typepad.com/sentencing_law_and_policy/
Bookmark: http://www.mapinc.org/topics/Blakely
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

SUPREME COURT TRANSFORMS USE OF SENTENCE GUIDELINES

WASHINGTON - The Supreme Court on Wednesday transformed federal criminal 
sentencing by restoring to judges much of the discretion that Congress took 
away 21 years ago when it put sentencing guidelines in place and told 
judges to follow them.

The guidelines, intended to make sentences more uniform, should be treated 
as merely advisory to cure a constitutional deficiency in the system, the 
court held in an unusual two-part decision produced by two coalitions of 
justices.

In the first part, five justices declared that the current guidelines 
system violated defendants' rights to trial by jury by giving judges the 
power to make factual findings that increased sentences beyond the maximum 
that the jury's findings alone would support.

That portion of the opinion had been widely anticipated, growing directly 
out of a similar conclusion the same five justices - John Paul Stevens, 
Antonin Scalia, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg - 
reached last June in invalidating the sentencing guidelines system in the 
state of Washington.

The real question hanging over the case, which the court granted on an 
expedited basis over the summer and heard in October on the opening day of 
its new term, was how the justices would solve the problem.

So it was the second part of the decision - the remedy - that was the 
surprise and that will shape the continuing debate over sentencing policy. 
With Justice Ginsburg joining the four justices who dissented from the 
first part - Stephen G. Breyer, Sandra Day O'Connor, Anthony M. Kennedy and 
Chief Justice William H. Rehnquist - a separate coalition said the problem 
could be fixed if the guidelines were treated as discretionary rather than 
mandatory.

 From now on, Justice Breyer said, writing for the majority in this portion 
of the decision, judges "must consult" the guidelines and "take them into 
account" in imposing sentences. But at the end of the day the guidelines 
will be advisory only, with sentences to be reviewed on appeal for 
"reasonableness." Lawmakers and legal experts predicted Wednesday that the 
court's decision would renew the struggle between Congress and the 
judiciary for control over sentencing. On Capitol Hill, some members of 
Congress made it clear that they were bracing for a fight over how much 
discretion federal judges should have.

The decision leaves many unanswered questions and much work for the federal 
courts of appeals. It is in the appeals courts that its real meaning will 
emerge, as those courts handle sentencing appeals and build a body of law 
evaluating the "reasonableness" of sentences.

Thousands of federal defendants who have been sentenced since the decision 
in the Washington State case have effectively been in limbo awaiting 
clarification of the situation. People whose sentences are still on appeal 
will be immediately affected by the ruling.

The guidelines provide judges with a grid with the offense for which the 
defendant has been convicted on one axis and the offender's history and 
other details on another. The grid gives the judges a range of possible 
sentences and the system instructs them to go above that range if they make 
certain factual findings. It was this mandatory aspect of the system that 
was at issue in the case.

The remedy devised by Justice Breyer's five-member majority had not been 
proposed by any party, although the Justice Department suggested a form of 
advisory guidelines as a fallback position to its defense of the system's 
constitutionality. Christopher A. Wray, an assistant attorney general, said 
Wednesday that the department was relieved to see the guidelines remain in 
place but concerned that sentencing disparities might increase now that 
they were no longer mandatory.

The decision, United States v. Booker, No. 04-104, had its roots in a 
series of intensely disputed sentencing rulings that began with Apprendi v. 
New Jersey in 2000. In a series of cases, the court has held that given the 
Sixth Amendment right to trial by jury, judges cannot impose sentences 
beyond the "prescribed statutory maximum" unless the facts supporting such 
an increase are found by a jury beyond a reasonable doubt.

Under that analysis, the constitutional cloud over federal criminal 
sentencing derived from the mandatory nature of the guidelines, which 
instruct judges to consider various facts, like a defendant's leadership 
role in a criminal enterprise, and to increase sentences beyond the 
guidelines accordingly. The court made it clear in the Washington State 
case last June that the top of an ordinary guideline range was the 
equivalent of a statutory maximum.

But if judges simply exercise their traditional sentencing discretion, 
advised by guidelines but not bound by them, the defendant's Sixth 
Amendment right is not implicated, a conclusion on which all nine justices 
agreed on Wednesday. In other words, as judges' flexibility grows, 
defendants' Sixth Amendment protections shrink.

The dispute on the court was not over that paradoxical proposition, but 
rather over how Congress would have chosen to proceed if it had known of 
the Sixth Amendment issue when it put the guidelines system in place in the 
Sentencing Reform Act of 1984. When the Supreme Court finds a statute 
unconstitutional, the court's next step is to see whether there is a 
solution consistent with the legislators' original intent.

Dissenting from the remedy portion of the decision, Justice Stevens, with 
Justices Souter, Scalia and Thomas, said in effect that the last thing 
Congress would have done would be to give judges back the power that the 
guidelines were intended to constrain.

Rather, the dissenters said, if the problem was a violation of the right to 
trial by jury, the solution also lay with the jury: to require prosecutors 
to make indictments more specific and to present to the jury any factor 
that would increase a sentence beyond the ordinary range. Justice Stevens 
said that in avoiding this solution and instead changing the nature of the 
guidelines themselves, it was "clear that the court's creative remedy is an 
exercise of legislative, rather than judicial, power," one that "violates 
the tradition of judicial restraint."

Justice Breyer insisted, however, that his was the solution that "would 
deviate less radically from Congress's intended system." He said that to 
make jury findings the basis for sentencing would shift too much power to 
prosecutors and "undermine the sentencing statute's basic aim of ensuring 
similar sentences for those who have committed similar crimes in similar ways."

Justice Breyer spoke with some authority; as chief counsel of the Senate 
Judiciary Committee in the 1970's, he played a leading role in the passage 
of the Sentencing Reform Act and later was a member of the United States 
Sentencing Commission. He had been on the losing side of the Apprendi 
decision and the subsequent rulings.

Though the outcome Wednesday was not one he would have wished - he argued 
in dissent from the first part of the decision that guidelines were 
different than statutes and that the analysis of the earlier rulings should 
not apply - the decision was in some ways a personal triumph. The 
Sentencing Commission remains intact and the guidelines are still on the 
books, with the presumption that most judges will follow them most of the time.

The mystery in the case was Justice Ginsburg, who joined the Stevens group, 
as she consistently has, in applying the Sixth Amendment to the guidelines. 
She then provided Justice Breyer with his fifth vote to preserve the 
system's architecture. She did not write a separate opinion to explain 
herself. The court took considerably longer on the case than had been 
expected. Many people thought a decision would be out by Thanksgiving, and 
it is possible that Justice Ginsburg's vote, and therefore the outcome, was 
in play until late in the process.

The portion of Justice Breyer's opinion that dealt with appeals had the 
effect of overturning a 2003 Congressional amendment to the sentencing law 
that instructed appeals courts to give no deference to the decisions of 
trial judges when reviewing sentences shorter than those called for by the 
guidelines. That provision, known as the Feeney Amendment for its sponsor, 
Representative Tom Feeney, Republican of Florida, was an expression of 
Congressional impatience with the judiciary and in turn angered many 
federal judges.

It was not clear Wednesday whether Freddie J. Booker and Ducan Fanfan, the 
two defendants in the case before the court, would benefit from the ruling. 
Mr. Booker, convicted in Federal District Court in Madison, Wis., of 
possessing 50 grams of cocaine base, received an extra 8 years on a 22-year 
sentence when the judge found that he had distributed 10 times that amount.

After Mr. Fanfan was found guilty by a jury in Portland, Me., of 
distributing 500 grams of cocaine, the judge refused the government's 
request to increase the sentence, predicting that the Supreme Court would 
soon find the guidelines unconstitutional. Both defendants will now go back 
to district court for possible resentencing, with an appeal available to 
both sides. 
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MAP posted-by: Richard Lake