Pubdate: Thu, 13 Jan 2005
Source: Philadelphia Inquirer, The (PA)
Copyright: 2005 Philadelphia Newspapers Inc
Contact:  http://www.philly.com/mld/inquirer/
Details: http://www.mapinc.org/media/340
Author: Stephen Henderson, Inquirer Washington Bureau
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)

JUSTICES WEAKEN SENTENCE RULES

Penalty Guidelines Set by Congress in '84 Are Advisory, Not Mandatory,
They Ruled.

WASHINGTON - The Supreme Court abandoned nearly two decades of federal
sentencing practice yesterday, saying judges no longer had to follow
the complex system of guidelines that Congress designed in the 1980s
to make prison 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 in Blakely v. Washington that said the Sixth Amendment
required 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 Blakely ruling within the guidelines, the court
prescribed a sweeping fix of its own.

The guidelines, it said in a separate 5-4 decision written by Justice
Stephen G. Breyer, will be used in an "advisory" manner to help
federal judges come up with "reasonable" sentences.

The court said that solved the constitutional problems with the
guidelines and preserved Congress' intent in adopting the rules.

Criminal-justice experts said the rulings, in the consolidated cases
of United States v. Booker and United States v. Fanfan, could also
bring more confusion to the process.

"What we have now is essentially unconstrained judicial sentencing,"
said Frank Bowman, an Indiana University law professor and a former
federal prosecutor.

Bowman noted that for years, many federal judges had complained that
the guidelines left them too little flexibility in determining sentences.

"But I think they'll come to regret what has happened here," he said,
"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."

Breyer did note that "the ball now lies in Congress' court."

Senate Judiciary Committee Chairman Arlen Specter (R., Pa.) said he
would begin working to "establish a sentencing method that will be
appropriately tough on career criminals, fair, and consistent with
constitutional requirements."

Bowman and others said it was unclear whether yesterday's rulings
offered most of the 170,000 federal inmates a chance to appeal their
sentences. But most agreed that nearly all inmates were likely to
think they had appeals, inspiring thousands to file.

Mixed feelings

Assistant Attorney General Christopher Wray, head of the Justice
Department's Criminal Division, said government officials were
encouraged that the court did not strike down the guidelines, but
disappointed that they were not kept mandatory. "The risk increases
that sentences across the country will become wildly inconsistent," he
said.

The rulings spring from two cases the court heard in October, on the
first day of its term. One involves Freddie J. Booker, who was
convicted in Wisconsin in 2003 of possessing 50 grams (about 1.7
ounces) of crack cocaine with intent to sell; the other involves Ducan
Fanfan, convicted in Maine in 2004 of conspiring to sell more than 500
grams of cocaine.

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

The guidelines, a result of the 1984 Sentencing Reform Act, were
designed to eliminate wide discrepancies in sentencing, and to make
sure judges did not 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."

'Bittersweet'

In June, in Blakely, the high 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
changed to reflect the ruling. The Supreme Court took the Booker and
Fanfan cases to provide clarity.

Yesterday's rulings mean Booker and Fanfan will be resentenced, but
their attorneys expect 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 voiced worry that yesterday's ruling could
return the nation to the days when judges in different parts of the
country handed out radically different punishments.

Breyer's effort to save the guidelines by making them advisory and
giving judges more discretion drew sharp dissents from Stevens and
from 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."

Yesterday's decisions are the latest in a long line of cases in which
the court has been reconsidering the Constitution's requirements
regarding sentencing.

An unusual alliance of justices - Stevens, Scalia, Thomas, David H.
Souter and Ruth Bader Ginsburg - has led an effort to heighten the
standards used at sentencing and require juries to make the most
important determinations.

Ginsburg has been viewed as the key vote, and yesterday's case saw her
play the most crucial role. She was the only justice who agreed with
Stevens' assertion that the sentencing guidelines violated the Sixth
Amendment and with Breyer's proposed remedy. 
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MAP posted-by: Richard Lake