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