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