Pubdate: Fri, 21 Jan 2005
Source: Austin Chronicle (TX)
Copyright: 2005 Austin Chronicle Corp.
Contact:  http://www.auschron.com/
Details: http://www.mapinc.org/media/33
Author: Jordan Smith
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

SUPREMES TAKE A SWIPE AT MANDATORY MINIMUMS

On Jan. 12, in a rare split ruling, the U.S. Supreme Court declared 
unconstitutional the federal sentencing guideline scheme enacted by 
Congress in the mid-Eighties in response to an increase in drug crimes, 
ruling that as currently applied the guidelines violate the Sixth Amendment 
right to a jury trial, and opining that the most advisable remedy is to 
transform the guidelines from a mandatory to an advisory tool for use by 
judges.

Last summer the Supremes agreed to accept and expedite two appeals brought 
to them by the federal government, which asked the judges to determine 
whether the Federal Sentencing Guidelines, written into the Sentencing 
Reform Act of 1984, would be affected by the court's June 24 decision to 
toss similar guidelines at use in Washington State. In that case, styled 
Blakely v. Washington, the court ruled 5-4 (with the court's conservative 
and liberal judges joining together against the middle) that the Washington 
sentencing guidelines were unconstitutional because they forced judges to 
increase jail time for a defendant based on a bench finding of facts never 
presented to a jury, a violation of the Sixth Amendment. On its face, the 
Blakely ruling only affected state sentencing schemes, but it threw the 
feds into confusion because federal courts routinely decide sentences based 
on evidence never presented to a jury.

Almost immediately, two federal drug prosecutions were called into 
question. In those cases, U.S. v. Booker and U.S. v. Fanfan, the defendants 
were found guilty on federal drug charges by jurors (for possession and 
intent to distribute various amounts of cocaine and crack), but were facing 
harsher sentences based on judicial determination that each had actually 
been responsible for trafficking a greater quantity of dope than determined 
by jurors. Although the FSGs called for enhanced sentences for both Booker 
and Fanfan, the presiding judges in those cases A- citing the Blakely 
decision A- declined to impose the harsher sentences. In a tizzy, the feds 
appealed both cases to the high court.

On Wednesday, in the same 5-4 split as in Blakely, the court ruled that the 
FSGs violate the constitutional right to a jury trial. The so-called 
"guidelines" are in fact mandatory, Justice John Paul Stevens opined for 
the majority in the first part of the ruling, and therefore are 
"incompatible" with the guaranteed right to a jury trial. The guidelines 
"as written A... are not advisory; they are mandatory and binding on all 
judges," Stevens wrote. While passage of the sentencing scheme "reflected 
the growing and wholly justified legislative concern about the 
proliferation and variety of drug crimes," Stevens wrote, the effect of the 
enhanced sentencing ranges "was to increase the judge's power and to 
diminish that of the jury." As a result, "[a]s the enhancements became 
greater, the jury's finding of the underlying crime became less 
significant," he wrote. "And the enhancements became very serious indeed."

While the majority A- Stevens, joined by Justices Antonin Scalia, Clarence 
Thomas, David Souter, and Ruth Bader Ginsburg A- tossed the mandatory 
"guideline" scheme, in a seemingly contradictory second-part ruling, 
Ginsburg jumped ship to form a majority with Chief Justice William 
Rehnquist and Justice Sandra Day O'Connor, Anthony Kennedy, and Stephen 
Breyer to provide a remedy for the situation, which at least partially 
restores the sentencing scheme ditched by the majority in the Stevens 
ruling. In part two, Breyer wrote for the majority that the only way to 
remedy the FSG part one ruling is to say that the sentencing guidelines can 
still be used if they're voluntary and not mandatory. Thus, a jury's 
finding can be enhanced at sentencing through judicial discretion. The SRA 
provision that makes the guidelines mandatory must be "severed and 
excised," Breyer wrote, and by doing that, the FSGs become "effectively 
advisory." That way judges still have additional latitude in sentencing, 
maintaining the FSGs as "advisory [for judges], while maintaining a strong 
connection between the sentence imposed and the offender's real conduct," 
which would achieve the uniformity and consistency in sentencing that 
Congress intended with passage of the SRA. In effect, the Breyer majority 
opined that judges should still have authority to take guidelines for 
upward sentencing into account, but that those discretionary sentences 
could be reversed on appeal upon a determination that the sentence was 
unreasonable.

Naturally, Stevens authored a dissent (which Souter and Scalia joined in 
part), blasting the Breyer majority for undercutting the Sixth Amendment 
holding from part one, calling the Breyer opinion an "extraordinary 
exercise of authority." Scalia was even more incensed, opining that "[o]nly 
in Wonderland" would such a scheme as that devised by the Breyer majority 
make any sense. "The worst feature of the scheme is that no one knows A- 
and perhaps no one is meant to know A- how advisory Guidelines and 
'unreasonableness' review will function in practice," he wrote.
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