Pubdate: Thu, 13 Jan 2005
Source: Capital Times, The  (WI)
Copyright: 2005 The Capital Times
Contact:  http://www.captimes.com/
Details: http://www.mapinc.org/media/73
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)

RULING MAY CUT SENTENCES

Madison Lawyer Wins in High Court

In a partial victory for a Madison lawyer, the U.S. Supreme Court
ruled today that federal judges have been improperly adding time to
criminals' sentences, a decision that puts in doubt longtime
sentencing rules.

The court, on a 5-4 vote, said that its ruling last June that juries -
not judges - should consider factors that can add years to defendants'
prison sentences applies as well to the 17-year-old federal guideline
system.

The justices refused to backtrack from the 5-4 decision that struck
down a state sentencing system because it gave judges too much leeway
in sentencing. But the high court stopped short of striking down the
federal system.

Madison attorney Chris Kelly, who argued the case last October before
the high court, was in trial in Green Bay today and unavailable for
immediate comment. Kelly was assisted by Milwaukee attorney Dean
Strang, who said the decision was a victory of sorts for criminal
defendants because it restores some of the balance to the sentencing
process.

"Some defendants will be better and some won't; what this does is
shift back to the federal judge some of the discretion they had for
more than a century before 1987 when Congress shifted some judicial
discretion to federal prosecutors. What's new today in some senses is
that among federal judges, the trial judge will be sharing more
discretion with the appellate judges, and the appellate judges also
will have broader discretion than they had before 1987," said Strang.

Kelly had represented Freddie Joe Booker in a September 2003 trial for
dealing crack. After a jury found beyond a reasonable doubt that
Booker had possessed with the intent to distribute 92.5 grams of crack
cocaine, he faced a sentenceof 10 years to life.

Applying the sentencing guidelines at Booker's sentencing hearing last
December, U.S. District Judge John Shabaz found by the lesser standard
of preponderance of evidence that Booker had distributed 566 grams in
addition to the amount the jury had determined. Also, Shabaz said
Booker had obstructed justice by lying on the witness stand.

Under the guidelines, the additional amount of crack added time to
Booker's potential sentence, boosting him to a range of 30 years to
life. Booker's 23 prior criminal convictions also allowed Shabaz to
increase Booker's sentence. Shabazimposed a 30-year sentence, the
bottom of the range.

Justice Stephen Breyer said in today's ruling that the federal
sentencing system is at least in part invalid because it forces judges
to conform to the guidelines. But he added that the system could be
salvaged, if judges use it on an advisory basis.

Justice Antonin Scalia said that solution would "wreak havoc on
federal district and appellate courts quite needlessly, and for the
indefinite future."

About 64,000 people are sentenced in federal courts each year, under a
system that had been challenged as unconstitutional in the Wisconsin
case and another from Maine. 
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MAP posted-by: Richard Lake