Pubdate: Thu, 13 Jan 2005
Source: Duluth News-Tribune (MN)
Copyright: 2005 Duluth News-Tribune
Contact:  http://www.duluthsuperior.com/mld/duluthtribune/
Details: http://www.mapinc.org/media/553
Author: Stephen Henderson, Knight Ridder Newspapers
Note: The 124 page ruling is on line as a .pdf document at 
http://www.november.org/Blakely/BookerDecision.pdf
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)

COURT SOFTENS SENTENCING RULES

The Supreme Court Gives Federal Judges New Discretion to Set Sentences
in Criminal Cases, With Guidelines to Be Used in an Advisory Maner.

WASHINGTON - The Supreme Court abandoned nearly two decades of federal
sentencing practice Wednesday, saying judges no longer have to follow
the complex system of guidelines that Congress designed in the 1980s
to make jail terms tougher and more uniform.

In a 5-4 decision, Justice John Paul Stevens, writing for the
majority, found that the federal guidelines ran afoul of the court's
2004 ruling that said the Sixth Amendment requires juries, not judges,
to determine facts that can lengthen sentences.

But rather than eliminate the guidelines or let lower courts work out
how to apply the 2004 ruling within the guidelines the court, in a
separate 5-4 decision written by Justice Stephen Breyer, prescribed a
sweeping fix of its own.

The guidelines, it said, will be used in an "advisory" manner to help
federal judges come up with "reasonable" sentences.

The court said that solves the constitutional problems with the
guidelines, and preserves Congress' intent in adopting the rules. But
criminal justice experts said Wednesday that the rulings could also
bring more confusion to the process.

"The court, by fiat or constitutional interpretation, has now created
a system of advisory guidelines, so what we have now is essentially
uncon-strained judicial sentencing," said Frank Bowman, an Indiana
University law professor and a former federal prosecutor.

Bowman noted that for years, many federal judges have complained that
the guidelines left them too little flexibility in determining
sentences, and Wednesday's ruling might seem to be what they wanted.

"But I think they'll come to regret what has happened here, because
it's something that's far more likely to provoke a response from the
Department of Justice and Congress that they'll find
unpleasant."

It's unclear, Bowman and others said, whether Wednesday's rulings
offer most of the 170,000 federal inmates a chance to appeal their
sentences. But most agree that nearly all inmates are likely to think
they have appeals, inspiring thousands to file.

Assistant Attorney General Christopher Wray, who leads the Justice
Department's Criminal Division, said government officials were
encouraged that the court didn't strike down the guidelines, but
disappointed that they weren't sustained as mandatory.

"To the extent that the guidelines are now advisory... the risk
increases that sentences across the country will become wildly
inconsistent," Wray said.

The rulings spring from two cases the court heard on the first day of
the current term in October. One involves Freddie Booker, who was
convicted in Wisconsin in 2003 of possessing 50 grams of crack cocaine
with intent to sell; another involves Ducan Fanfan, convicted in Maine
in 2004 of conspiring to sell more than 500 grams of cocaine.

Both were in possession of far more drugs than they were convicted of
having, and under the guidelines, federal judges would have been able
to impose longer sentences based on that fact.

The guidelines, the result of the 1984 Sentencing Reform Act, were
designed to eliminate wide discrepancies in sentencing, and to make
sure that judges didn't go too easy on criminals. They give judges a
range of sentences for similar crimes, and prescribe longer sentences
for criminal activity that judges find to be beyond what a jury
weighs, called "relevant conduct."

But in spring 2004, the Supreme Court ruled that state courts were
barred by the Sixth Amendment's guarantee of a jury trial from
allowing judges to make those kinds of determinations. That ruling
caused chaos in federal courts, including the ones considering
sentences for Booker and Fanfan, where it was unclear whether the
ruling applied. Hundreds of sentences were postponed and several were
changed to reflect the ruling. The Supreme Court took Booker's and
Fanfan's cases to provide clarity.

Wednesday's rulings mean that Booker and Fanfan will be re-sentenced,
but their lawyers expect that the decisions won't benefit them.

"This ruling was bittersweet for defendants," said Arizona federal
public defender Jon Sands, who chairs a committee of public defenders
that focuses on sentencing guidelines.

"The Sixth Amendment was vindicated, but then it was undercut again,
all in one day."

Some defense lawyers also worry that Wednesday's decision could return
the nation to the days when judges in different parts of the country
handed out radically different punishments.

The ruling could produce some "law-and-order" circuits where judges
throw maximum sentences at any eligible defendant, and others where
more lenient judges offer parole to hardened criminals.

"My biggest concern is that you'll have exactly the kind of
judge-by-judge, circuit-by-circuit variation that the guidelines were
intended to reduce," said Doug Berman, a law professor at the Moritz
College of Law at Ohio State University.

Breyer's attempt to save the guidelines by making them advisory and
giving judges more discretion drew sharp dissents from Stevens and
Justices Antonin Scalia and Clarence Thomas.

Scalia called Breyer's solution "wonderfully ironic," in that it
"discards the provisions that eliminate discretionary sentencing" in
order to rescue "a statutory scheme designed to eliminate
discretionary sentencing."

Stevens said Breyer's opinion gives no indication as to "how much or
to what extent 'relevant conduct' should matter." 
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MAP posted-by: Richard Lake