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. - --- MAP posted-by: Richard Lake