Pubdate: Sat, 15 Jan 2005
Source: Telegraph (NH)
Copyright: 2005 Telegraph Publishing Company
Author: Andrew Wolfe, Telegraph Staff
Bookmark: (Mandatory Minimum Sentencing)


For years, federal sentencing guidelines were a great big oxymoron.

The guidelines are a set of rules, rivaling the federal tax code in 
complexity, that determine the potential sentence for people convicted in 
federal courts.

They weren't guidelines, though. The guidelines served to calculate 
mandatory minimum and maximum sentences, with a narrow range between, that 
judges were bound to follow.

Now, the U.S. Supreme Court has ruled the system unconstitutional, and made 
the guidelines advisory, rather than mandatory.

Judges have grumbled about the guidelines for years, but judges at the U.S. 
District Court for New Hampshire in Concord declined to comment on this 
week's ruling in U.S. v. Booker, Court Clerk James Starr said Friday.

Judge William Young, chief justice of the U.S. District Court in 
Massachusetts, unabashedly applauded the decision.

"What this does is make truthful the rhetoric that's being used. It renders 
the guidelines guidelines, instead of a constricting, mandatory framework 
that really allows the prosecutor to determine sentences," Young said.

"We say they were guidelines, but they weren't guidelines at all," Young said.

"I'm much in favor of it," he said of the decision. "I emphatically believe 
it accurately describes the requirements of the Sixth Amendment of the U.S. 
Constitution . . . that it is a jury of the people that stands between the 
prosecutor and the jailhouse door."

The ruling affects all pending and future criminal cases, but it doesn't 
apply to cases that have already been resolved, so the wave of appeals and 
motions for reconsideration shouldn't be too overwhelming, Young said.

"People who predict chaos . . . are just wrong," Young said.

"The day the opinion came out, that afternoon, I sentenced someone. It's 
effective immediately," Young said. "On that particular case, it had no 

The case involved a forgery charge, in which both the defendant and 
prosecutors agreed how much money was taken, Young said.

Discretion may become a bigger factor in more complicated cases, but Young 
said he doubts there will be any large overall increases or decreases in 
the length of sentences handed down by federal judges. Judges are still 
required to consider the guidelines, even if they don't follow them 
exactly, Young noted.

New Hampshire's chief federal prosecutor, U.S. Attorney Thomas Colantuono, 
also predicted it won't create any immediate or drastic changes in sentencing.

"In this district, I think it will not have a tremendous impact. I think 
cases will be decided in a fairly similar manner," Colantuono said. "We're 
not worried about it. We'll deal with the ruling, and we have great 
confidence (in the courts).

"Judges will have more discretion," but so will lawyers, he said. Lawyers 
on both sides will be able to make more creative arguments, for greater or 
lesser terms.

The U.S. Supreme Court already had changed the sentencing rules 
dramatically in recent years in its decisions in the Blakely and Apprendi 
cases, holding that any factors or facts that determine a person's sentence 
must be charged, and either admitted or proven beyond reasonable doubt.

"The day the Blakely decision came out . . . everybody in the courtroom had 
a copy of that case. Everybody," federal defender Jonathan Saxe said in an 
interview at the time. "It definitely shook the foundations."

Saxe argued the sentencing guidelines were often overly harsh and unfair. 
He recounted that one client got 10 years in prison for selling a small 
amount of crack cocaine in a bar. Because he had been convicted of burglary 
twice before, he was deemed a "career criminal" under the guidelines, Saxe 

Until recently, the guidelines also allowed people to be sentenced, in 
effect, for crimes for which they weren't convicted, Saxe said.

A person could be found innocent on nine out of 10 charges, convicted on 
one, "and then sentenced as if you were convicted on all of them. That's 
absurd," Saxe said.

Young made clear his own opposition to the federal sentencing guidelines in 
a 174-page ruling last summer in the case of U.S. v. Green. Soon afterward, 
the Supreme Court issued its Blakely decision.

Young argued the guidelines took sentencing authority away from judges, and 
gave prosecutors all the power.

Young wrote that federal prosecutors have been "addicted to plea 
bargaining" as a way to pump up their conviction rates and appear 
successful against crime.

"The focus of our entire criminal justice system has shifted far away from 
trials and juries and adjudication to a massive system of sentence 
bargaining that is heavily rigged against the accused citizen," Young wrote 
in the Green decision.

"Not surprisingly, (the Department of Justice) uses its vast powers to 
induce plea bargains, thus eviscerating the constitutional guarantee of 
trial by a jury of one's peers." 
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