Pubdate: Fri, 14 Jan 2005
Source: Minneapolis Star-Tribune (MN)
Copyright: 2005 Star Tribune
Contact:  http://www.startribune.com/
Details: http://www.mapinc.org/media/266
Author: Margaret Zack
Bookmark: http://www.mapinc.org/topics/federal+sentencing

MINNESOTA'S TOP FEDERAL JUDGE LOOKS AT RULING ON SENTENCING

In the wake of a U.S. Supreme Court decision Wednesday that gives
federal judges more discretion in sentencing criminals, the top
federal judge in Minnesota sat down to discuss the effect of the ruling.

Chief U.S. District Judge James Rosenbaum testified before Congress in
2002 that federal sentencing guidelines were too strict in some cases.

Judge Rosenbaum said Thursday the approach now to be taken in
sentencing maintains a strong connection between an offender's conduct
and the sentence.

The judge's answers have been edited for space, but these are his
thoughts in his own words:

Q How many cases do you anticipate will come back for
resentencing?

A I don't know if there'll be any, but there may be a large number.
It's not clear if the opinion is retroactive. If it is, there could be
a very large number. They made it clear in ... that all cases
presently on direct appeal, those who have been sentenced or found
guilty and haven't yet gone through the full appellate process, this
opinion will apply. Whether it will be retroactive beyond that no one
knows.

A court is either going to decide it is retroactive or not and that's
appealable. The Supreme Court may decide to take that up.

Q Does the fact that it was such a lengthy decision with multiple and
different alliances on the court have any impact on the ruling?

A Sometimes lawyers will say to me, "This was only a 5-4 decision." I
point out to them that Miranda was 5-4 and to my knowledge it's the
law. So the answer is no.

It's very closely reasoned. They worked very carefully to craft an
opinion. The rulings are generally clear so we can do our work. The
ruling is that sentencing guidelines will now have to be consulted.
They are no longer mandatory, and that standard of appellate review
will be ... whether the judge's decision was reasonable.

The other approach we now adopt maintains a strong connection between
an offender's real conduct and the sentence.

That's important to increased uniformity of sentencings that Congress
intended guidelines to achieve.

Q Do you agree with Justice Antonin Scalia that the decision could
create havoc in the federal courts?

A Justice Scalia was writing persuasively as he frequently does. You
may recall last spring when Blakely [another sentencing decision] came
out, the headlines talked about havoc and chaos. Did you see any?
Judges will work as hard as they can to do the best they can to follow
the law as they know it.

Q Does this decision give federal judges more power in
sentencing?

A In a real sense, I don't think it does.

The guidelines considerations were really considerations people always
used. But when they become mandatory, it objectified them.

Anyone who sentenced a bank robber would consider whether there was a
threat, whether they used a gun, whether the gun was brandished,
whether the gun was fired, whether someone was hit with a bullet.
You'd expect the sentences would vary from one to another depending on
that.

The Supreme Court said the mandatory nature does not square with the
law. But does it give judges more power? Judges always consider the
various factors under any system.

Q What are the benefits or problems with giving judges more discretion
in sentencing?

A I think there's a strong policy in favor of making the same crime
subject to the same punishment. The same way the guidelines attempt to
quantify all those factors I said about the bank robbery, you have to
look at the other factors, the person's criminal record, whether or
not they were under some kind of duress or forced to do things, those
kind of modifications are involved. The sentencing guidelines goal is
to eliminated unwarranted disparities in sentencings.
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MAP posted-by: Richard Lake