Pubdate: Mon, 17 Jan 2005
Source: Providence Journal, The (RI)
Copyright: 2005 The Providence Journal Company
Contact:  http://www.projo.com/
Details: http://www.mapinc.org/media/352
Author: Mike Stanton, Journal Staff Writer
Bookmark: http://www.mapinc.org/topics/federal+sentencing
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

U.S. JUDGE FEELS FREED FROM SHACKLES OF SENTENCING GUIDELINES

Judge Ernest C. Torres welcomes the greater discretion in sentencing
that comes with last week's Supreme Court ruling, but he suspects it
may not last.

Like many trial judges, Chief U.S. District Judge Ernest C. Torres has
felt frustrated over the years by federal sentencing guidelines.

There have been cases, he said, where he would have liked to impose a
tougher sentence, and others where he would have been more lenient.
But he was constrained by the "guidelines" that were passed by
Congress two decades ago.

But this week, the U.S. Supreme Court freed judges, at least
temporarily, by declaring the mandatory guidelines unconstitutional.
In returning more discretion to judges, the court ruled that requiring
them to adhere to the guidelines violated a defendant's constitutional
right to a fair trial, by transferring too much power from the jury to
the judge.

"Going forward, this is good if it lasts," Torres said. "I think I'm
typical of most trial judges who favor true guidelines as a
double-check on what we do . . . but having them as more than just
guidelines creates situations where you have to do something you don't
think is fair and just, under the circumstances."

In the wake of this week's Supreme Court decision, Torres said, "we're
back to a state of affairs that is appealing to trial judges."

Still, Torres doesn't necessarily expect things to remain as they are.
As the Supreme Court noted, Congress is likely to step into the breach
- -- and, Torres said, that could mean tough new laws requiring
mandatory minimum sentences or forcing judges to impose the maximum
sentence, with limited discretion for leniency.

While those approaches might pass constitutional muster, Torres said,
"one could argue that either approach would be a mistake."

"I've never been a fan of mandatory minimums," said Torres. "I
understand the motives of Congress to want to deal with crimes that
are serious, but there are always those cases that are so unique that
need room for exception."

Ironically, the Supreme Court ruled that the guidelines that have tied
judges' hands also gave them too much authority in determining facts
that never went before a jury -- facts that led to increased prison
terms under the guidelines.

Before the guidelines, a judge had the discretion to weigh such
factors in imposing a sentence. So while former Providence Mayor
Vincent A. Cianci Jr. received a two-year increase in his prison term
for racketeering conspiracy under the guidelines, for a total term of
5 years and 4 months, the maximum prison term under the law for that
offense is 20 years.

Cianci is one of many defendants across the country who is appealing
the length of his sentence. In the ex-mayor's case, Torres concluded
that Cianci had been a leader of a corrupt City Hall enterprise and
also that he was a public official who violated the public trust.

Cianci's lawyer, John A. "Terry" MacFadyen III, said yesterday that he
has spoken to his client, who is incarcerated at Fort Dix, N.J., about
the ruling and its potential impact on the former mayor's appeal.

"I'm sure he's pleased," said MacFadyen. "But he's also
realistic."

MacFadyen called the Supreme Court ruling paradoxical, in that it
first struck down the sentencing guidelines and then essentially
preserved them as advisory, rather than mandatory, by rewriting the
law that Congress passed to create them.

It was a novel approach that neither side had suggested in arguments
before the court last year, and came in a pair of 5-4 decisions in
which only one justice -- Ruth Bader Ginsburg -- voted with both majorities.

One possible remedy, were Cianci to prevail on his appeal to have his
sentence reduced, would be for the case to be sent back to Judge
Torres for resentencing, under new rules allowing greater discretion.

While Wednesday's decision in a pair of cases, United States v. Booker
and United States v. Fanfan, discussed a judge's use of "sentencing
facts" versus a jury's determination of the facts of a crime beyond a
reasonable doubt, Torres said that judges and juries historically have
played different roles.

It's the jury's job to determine if a someone is guilty, a
legislature's job to set the maximum penalty for a crime and the
judge's job to impose a sentence.

Since the Supreme Court signaled last year that it would overturn the
mandatory guidelines with another decision involving the Washington
state system, federal prosecutors have responded by including more
specifics in indictments. So if a defendant is convicted of selling
cocaine, the indictment might be more specific than previously as to
the amount, since judges would previously weigh such details that
never came before or were explicitly determined by the jury in passing
sentence.

As a result, Torres noted, defendants are increasingly moving to
strike certain details or allegations from indictments, arguing that
they would be irrelevant and prejudicial if put before a jury. And
some judges, he said, have agreed to sever certain allegations, and
then if the jury convicts the defendant, ask jurors to weigh those
additional factors.

MacFadyen said that while he has some concerns about a judge having
"total, unfettered discretion," and about the possible disparities in
sentencing that prompted Congress to create the sentencing guidelines
in the first place, he also favors giving judges more discretion.

"Yes, the system can be unfair, but ultimately you have to trust the
judges," he said. 
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MAP posted-by: Richard Lake