Pubdate: Thu, 13 Jan 2005
Source: Dallas Morning News (TX)
Copyright: 2005 The Dallas Morning News
Contact:  http://www.dallasnews.com/
Details: http://www.mapinc.org/media/117
Author: Allen Pusey, The Dallas Morning News
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)

FEDERAL SENTENCING GUIDELINES ARE LIFTED

Supreme Court Changes Rules Followed by Federal Judges From Mandatory to 
Advisory

WASHINGTON - In a long-anticipated decision, the
U.S. Supreme Court ruled on Wednesday that key elements of the federal
system of sentencing guidelines are unconstitutional.

The action curtails, at least for the moment, congressional management
of sentences for federal offenders.

Prosecutors, defense attorneys - even the justices themselves -
diverged broadly over the practical effects of the opinions, which
were delivered by Justices John Paul Stevens and Stephen Breyer on
behalf of two different court majorities.

Justice Stevens' opinion held that the federal guidelines violated the
constitutional right to trial-by-jury by allowing sentences harsher
than the statutory maximum, often based on facts - such as a
defendant's demeanor or suspected criminal behavior - never
acknowledged by the defendant or determined by a jury. Justice Stevens
was joined by Justices Antonin Scalia, David Souter, Clarence Thomas
and Ruth Bader Ginsburg. Justice Breyer's opinion - a so-called
remedial opinion - attempted to salvage the 18-year-old guidelines by
preserving them as advisory benchmarks in federal cases. He was joined
by Chief Justice William Rehnquist and Justices Sandra Day O'Connor,
Anthony Kennedy and Ginsburg. Justice Ginsburg was the only common
vote between the two opinions.

The ruling directly affects many of the more than 60,000 offenders
sentenced each year in federal court. More than nine in every 10
resolve their cases by plea bargain, the terms of which are often
negotiated on the basis of the sentencing guidelines. But Wednesday's
ruling also left open the possibility that some cases resolved under
the old system could be re-litigated by some defendants who may have
been more harshly sentenced under the existing federal rules.

Legal observers suggested that although judges will gain new latitude,
many would continue relying on the guidelines. Still, the ruling
presents a power shift. "I hope that courts, having been told by the
Supreme Court that they should still look at the guidelines, will
continue to impose sentences within that range. And that's what we're
going to be asking them to do," said Christopher Wray, who heads the
U.S. Justice Department's criminal division. In Dallas, Richard Roper,
U.S. attorney for the Northern District of Texas, said he was
disappointed.

"The guidelines brought something that didn't exist to the federal
criminal justice system - uniformity to sentencing," he said. "I once
worked with a federal witness who had been sentenced to 20 years for
bank robbery in Texas who served in the same cell with a bank robber
from California who received two years for the same, almost identical
crime."

Others expressed exasperation at the ruling. "It's a shocking decision
that the Supreme Court undertook such a naked power grab from
Congress," said Bill Mateja, a former Justice Department official
involved, until recently, in sentencing policy. "It's a huge potential
windfall for criminal defendants. It empowers judges to give shorter
sentences than they might otherwise have given." Frank Bowman, a
professor at the Indiana School of Law and co-author of the Federal
Sentencing Guidelines Handbook, said many things about the decisions
are unclear but, for the moment, federal judges have gained vast
sentencing powers. "I think you now have a system that gives federal
judges the greatest power in the history of the republic," Mr. Bowman
said.

Craig Margolis, a former federal prosecutor and white-collar criminal
defense expert for the Vinson & Elkins law firm doubted that federal
sentencing practices would radically change, despite judges' new
leeway. "Many of the judges currently on the bench are comfortable
with the guidelines, and they will likely follow them anyway," Mr.
Margolis said. The decision was largely expected. In 2000, the court
ruled it was unconstitutional to sentence an offender based on facts
not determined by a jury. Last June, for virtually the same
constitutional reasons, the court struck down sentencing guidelines in
the Washington state that had been modeled after the federal system.
Justice O'Connor, who dissented in that case, warned that the federal
guidelines would likely be found unconstitutional.

The Washington decision, known as Blakely vs. Washington, created a
summer of uncertainty in federal courts throughout the country.
Several appeals circuits overruled the federal guidelines. Others,
including the 5th U.S. Circuit Court of Appeals - which includes Texas
- - kept the guidelines in place. Some circuits advised courts to
sentence offenders with, and without, the federal guidelines, in case
they were overturned. Acknowledging the uncertainty, the Supreme Court
scheduled an extra two hours of argument on the first day of the new
term in October to accommodate the cases decided Wednesday. They
involved defendants from Wisconsin (U.S. vs. Booker) and Maine (U.S.
vs. Fanfan).

Congress created the U.S. Sentencing Commission in 1984 to establish
and refine sentencing guidelines. The congressionally appointed panel
adjusts the guidelines as Congress requires. They received bipartisan
support from those who sought judicial rulings without wide variation
for the same crime. Mr. Bowman, who helped write the book on
sentencing guidelines, says things have changed since before
guidelines began. The federal parole process has been eroded, Mr.
Bowman said. The parole commission tended to resolve some of the
disparities in sentencing on the back-end of the system. "That
possibility no longer exists," Mr. Bowman said. Mr. Margolis thinks
that Congress may soon respond.

"If they think that this is a back-door way for the courts to get
around the guidelines, they are likely to implement stiffer minimum
sentences in response. Mr. Bowman agrees.

"I rather suspect the federal judiciary will come to regret this
[Wednesday's decision]. Of all the possibilities, this is the one
outcome that is most likely to provoke a response from the Justice
Department and Congress that they might find unpleasant."

[sidebar]

THE RULING

The question: Is it constitutional to add time to federal sentences beyond 
the statutory maximum, using guidelines based on facts not presented to a jury?

The decision: The mandatory use of federal sentencing guidelines improperly 
limits judicial discretion.

What's next: Judges gain new latitude to determine punishment, but analysts 
believe many jurists will still consult the guidelines.
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MAP posted-by: Richard Lake