Pubdate: Fri, 14 Jan 2005
Source: Oregonian, The (Portland, OR)
Copyright: 2005 The Oregonian


Hit to federal sentencing laws is a reminder to Oregon that the state also 
must update its court practices

For years, Oregon has locked up people for long prison terms under the 
state's strict sentencing guidelines. That tough-on-crime approach can 
continue, despite recent landmark Supreme Court rulings that complicate the 

Oregon will, however, need to tweak its statutes and practices to comply 
with new constitutional realities. The goal should be a sentencing system 
that is tough, standardized, fair and humane.

The U.S. Supreme Court rocked the legal world twice last year -- first by 
changing the rules on hearsay evidence, then by overturning part of 
Washington state's mandatory sentencing guidelines. This week, the high 
court gave federal guidelines a similar treatment. This week's ruling 
applies only to the federal system, but it's an apt reminder for Oregon of 
the work ahead.

Prosecutors, defense attorneys and judges are scrambling for a workable 
solution to recommend to legislators. Everyone wants to fix the system 
without setting off a war over Measure 11, which voters approved to mandate 
tough sentences for violent crimes.

Tweaking the system is doable. But it won't be easy.

Last spring, the Supreme Court ruled 9-0 that certain out-of-court 
statements should no longer be allowed as evidence. This dramatic change in 
hearsay law alters the way many cases in Oregon can be prosecuted -- 
especially cases involving child abuse or domestic violence, where victims 
are often reluctant to testify and be cross-examined.

Then last June, the Supreme Court overturned part of Washington state's 
mandatory sentencing guidelines. In that Blakely v. Washington ruling, the 
court said facts that enhance a mandatory sentence must be proved to a jury 
beyond a reasonable doubt, not determined by a judge using a lower standard 
of evidence.

This week's pair of 5-4 decisions followed naturally from Blakely. One 
generally mirrored the Blakely decision. The other, using semi-circular 
logic and a wave of the judicial wand, turned the nation's 20-year-old 
mandatory sentencing guidelines into optional advice: Judges can boost 
sentences, but they don't have to.

In other words, judicial discretion is constitutional. But sending people 
to prison for an extra decade, using evidence that a jury never hears and 
rules a judge can't change, will no longer fly.

As for the federal mess, we suspect Congress will leap in with a solution 
that reties judges' hands and removes any whiff of flexibility in 
sentencing. That's too bad, but too many members of Congress reflexively 
mistrust judges and see judicial discretion as a form of activism.

We suspect Oregon can be calmer. The state can still have tough mandatory 
sentences for violent crimes. It can still enhance penalties for 
aggravating factors. It can still force judges to lock people up for years.

But any time a sentence or extra penalty is mandatory, a jury needs to be 
involved. And in all criminal cases, victims deserve swift justice, the 
accused deserve the right to defend themselves, and the public deserves a 
judicial system that makes a little room for common sense.

Ideally, these rulings will lead to a system that's more fair and easier to 
navigate. That will require restraint and patience, as the wheels of 
justice continue to turn. 
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MAP posted-by: Richard Lake