Pubdate: Thu, 13 Jan 2005
Source: Pittsburgh Post-Gazette (PA)
Copyright: 2005 PG Publishing
Contact:  http://www.post-gazette.com/
Details: http://www.mapinc.org/media/341
Author: Torsten Ove, Pittsburgh Post-Gazette
Bookmark: http://www.mapinc.org/topics/federal+sentencing+guidelines
Bookmark: http://www.mapinc.org/topics/Blakely
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

JURISTS HERE REACTING FAVORABLY

Discount Prospect of Inconsistent Sentencings

While the legal community was trying yesterday to decipher the Supreme
Court's ruling on federal sentencings, the practical impact is that
judges no longer will be forced to sentence defendants within a
certain range.

The high court said Congress violated the Constitution when it made
sentencing guidelines mandatory 17 years ago.

Many experts had expected the justices to throw out the guidelines
entirely because they allow judges to impose enhanced sentences based
on facts not proved to a jury.

That didn't happen.

The guidelines survived, but now judges will be allowed to use them as
mere recommendations.

"I'm very pleased to see that the court ruled in the way it has, as I
expected it would," said former U.S. District Judge Robert Cindrich, a
frequent critic of sentencing guidelines. "I can only hope that the
Congress will take a serious look at the sentencing laws as the court
has suggested and that the future sentencing laws will be more of
reason and sensibility than has been demonstrated in the past."

Several sitting judges said they couldn't comment because they were
still reading the decision and trying to figure it out.

U.S. Attorney Mary Beth Buchanan, who attended a news conference about
the ruling yesterday in Washington, D.C., said the Justice Department
was pleased that the guidelines weren't tossed out but disappointed
that they are now only advisory.

The idea of the guidelines was to ensure uniformity in sentencing
across the country for people charged with the same crimes.

"Certainly the risk does exist that sentences will be more
inconsistent and disparate as a result of this opinion," Buchanan said.

Lisa Freeland, who heads the federal public defender's office in
Pittsburgh, said she was glad that the ruling will allow judges to
again use their discretion.

But she said the decision could also allow judges to consider
inappropriate factors. In the South, for example, she said history
shows that some judges used to make decisions based on race.

Freeland said she would hate to see a return to that kind of
discretion.

On the other hand, she said she was gratified that judges can now
craft a sentence based on a review of the defendant as a person and
not on a mathematical calculation.

"I like it because it does allow judges broader consideration of a
defendant's personal characteristics," she said. "But we'll have to
see how it plays out."

The ruling leaves many issues unexplored.

No one can say for certain what will happen to sentences that have
already been imposed.

Also, mandatory minimum sentences contained in the criminal statutes
are not affected by the ruling, even though judges complain that those
provisions are even more restrictive than the guidelines.

A change in the federal system has been anticipated since the Supreme
Court's ruling in Blakely v. Washington last June.

In Blakely, the court threw out a Washington state law under which a
judge enhanced the prison term of a kidnapper because he decided the
man acted with "deliberate cruelty."

That decision set the stage for the two Supreme Court challenges of
the federal guidelines that the high court ruled on yesterday.

Most local judges took a wait-and-see approach after Blakely.

"Far be it for a district judge to, at best, misinterpret and at
worst, appear to overrule the U.S. Supreme Court," Judge Gary
Lancaster wrote in one opinion.

But one local jurist, U.S. District Judge Arthur J. Schwab, threw out
the guidelines on his own, the only judge in Pittsburgh to do so.

The issue came up last year in the case of United States v. Nicole
Harris, 35, of North Versailles, who pleaded guilty to helping Anthony
Williams, Anthony Askew and Maurice Askew rob six banks in the eastern
suburbs and Moon in 2002.

Schwab said the guidelines violated the Constitution, although Harris
agreed to be sentenced under them anyway. He gave her 46 months.

Sentencings in federal cases are decided by complex formulas. The
criminal statute itself determines the penalties, and under the old
system that's all a judge had to consider.

But under the guidelines, judges also had to consider such factors as
the amount of drugs involved in a narcotics case or the amount of loss
in a fraud case. In addition, a judge examines "aggravating" and
"mitigating" factors, such as a person's criminal history or lack of
one, or whether he committed perjury.

All of those elements are plugged into a formula by the U.S. probation
office, which prepares a report recommending a sentence. The defense
and prosecution can then challenge the report.

After the objections are considered, the judge's staff prepares a
report of its own and the judge imposes the sentence.

The case of Clarence B. Jones, 79, of Washington County, is a simple
example of how the system works.

Jones was convicted last year of collecting nearly $90,000 in
government benefits by pretending to be other people.

In deciding the sentence, Senior U.S. District Judge Gustave Diamond
was bound by a guideline chart on dollar loss amounts. Because the
amount was between $70,000 and $120,000, the guidelines called for a
sentence of 15 to 21 months.

Diamond had to stay within that range and chose 21
months.

Now, he would be free to disregard the guideline range if he chooses.
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MAP posted-by: Richard Lake