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