Pubdate: Thu, 13 Jan 2005
Source: Atlanta Journal-Constitution (GA)
Copyright: 2005 The Atlanta Journal-Constitution
Contact: http://www.ajc.com/opinion/content/opinion/letters/sendletter.html
Website: http://www.accessatlanta.com/ajc/
Details: http://www.mapinc.org/media/28
Author: Bill Rankin, The Atlanta Journal-Constitution
Bookmark: http://www.mapinc.org/topics/federal+sentencing+guidelines
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JUSTICES STRIKE DOWN SENTENCING GUIDELINES

The U.S. Supreme Court on Wednesday struck down mandatory federal
sentencing guidelines, throwing into chaos a system used by judges
nationwide since 1987.

With a splintered, 5-4 decision, the high court ruled that guidelines
used to sentence more than 83,000 defendants a year are just that --
guidelines, which federal judges must still consider but no longer are
bound to follow.

In the first part of the court's landmark ruling, written by Justice
John Paul Stevens, a coalition of liberal and conservative justices
said the guidelines violated the Sixth Amendment because they allowed
a judge to increase criminal penalties based on his or her own
fact-finding, rather than on a jury's determination.

The second part of the ruling, written by Justice Stephen Breyer, said
that even though the guidelines are now advisory, judges must still
consult them before deciding the length of a defendant's prison term.

Thousands of criminal sentencing hearings, including dozens of cases
in U.S. District Court in Atlanta, had been put off by judges pending
the outcome of Wednesday's ruling.

The decision was a victory for Freddie J. Booker, the lead defendant
in the appeal. Booker was convicted of drug distribution by a
Wisconsin jury that heard evidence he possessed 92.5 grams of cocaine.
During Booker's sentencing hearing, however, the trial judge found
Booker had possessed an additional 566 grams of crack cocaine. Under
the guidelines, that factor increased his sentence by 10 years.

Stevens, joined by Justices Antonin Scalia, Clarence Thomas, David
Souter and Ruth Bader Ginsburg, wrote that the Constitution gives a
criminal defendant the right to demand that a jury decide his or her
guilt or innocence of all the elements of a crime that determine his
or her sentence.

"The interest in fairness and reliability protected by the right to a
jury trial -- a common-law right that defendants enjoyed for centuries
and that is now enshrined in the Sixth Amendment -- has always
outweighed the interest in concluding trials swiftly," Stevens wrote.

Christopher Wray, assistant attorney general for the Justice
Department's criminal division, said he was pleased the court did not
throw out the guidelines entirely.

"To the extent that the guidelines are now advisory, however, the risk
increases that sentences across the country will become wildly
inconsistent," Wray said. He credited the guidelines with producing
"fair, tough, uniform, predictable and proportionate sentences."

But criminal defense attorneys, many of whom have called the
guidelines draconian, inflexible and insensitive, applauded the ruling.

"It should give those judges who were willing to exercise their
discretion the chance to put the human factor back into sentencing,"
Atlanta defense lawyer Bruce Harvey said. "It should take the
heartlessness out of these mandatory guidelines."

The watershed decision had been predicted after a Supreme Court ruling
last summer that invalidated the state of Washington's sentencing
guideline scheme.

Wednesday's ruling gives far greater deference to federal judges who
want to impose harsher or more lenient sentences than the guidelines
call for, Atlanta criminal defense attorney Steve Sadow said. He noted
that appellate courts can now overturn such sentences only if they are
found to be "unreasonable," a high legal threshold to overcome.

"Obviously, this decision has great potential for some defendants,"
Sadow said. "On the other hand, there are some sentences that are
going to be much longer . . . such as those in violent-crime cases."

Left unresolved is what will become of the hundreds of thousands of
federal sentences handed down before Wednesday.

The ruling holds that inmates whose pending appeals raised the issue
should receive new sentencing hearings. Still, many other inmates now
in the federal prison system, which does not grant parole, are sure to
mount new challenges.

"There is going to be a flood of them," said Washington attorney Craig
Margolis, a former federal prosecutor in Philadelphia. "The federal
courts will wrestle with whether to apply this rule to these
defendants, as it could result in the potential release of hundreds if
not thousands of federal prisoners."

Scalia, who voted for the first part of the ruling but not the second,
predicted the change would "wreak havoc on federal district and
appellate courts quite needlessly, and for the indefinite future."

Breyer added, "Ours, of course, is not the last word. The ball now
lies in Congress' court."

The ruling does not affect laws passed by Congress imposing mandatory
minimum sentences for some crimes, raising concerns by criminal
defense attorneys that it may enact more to take the place of the
stricken mandatory guidelines.

The federal sentencing guidelines, enacted by Congress in 1984, were
intended to eliminate disparities in sentences imposed upon defendants
in different jurisdictions whose crimes and records are otherwise similar.

The guidelines use a grid that provides a range of months of
imprisonment to be given for each offense. The grid moves up when a
judge finds there were certain aggravating factors in the crime, such
as determining the defendant was the leader of a conspiracy, used a
gun or had a prior record. The grid drops if the judge finds a
defendant accepted responsibility for the crime or played a minor role
in the offense.

Atlanta defense attorney Don Samuel said the Supreme Court's ruling
raises more questions than answers and is sure to spark even more litigation.

"It's a new world we're going to have to figure out together --
district courts, defense attorneys and prosecutors alike," he said.
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