Pubdate: Fri, 25 Jun 2004
Source: New York Times (NY)
Copyright: 2004 The New York Times Company
Contact:  http://www.nytimes.com/
Details: http://www.mapinc.org/media/298
Author: Linda Greenhouse
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)
Bookmark: http://www.mapinc.org/prison.htm (Incarceration)

JUSTICES, IN 5-4 VOTE, RAISE DOUBTS ON SENTENCING RULES

WASHINGTON, June 24 -- The Supreme Court invalidated the criminal 
sentencing system of the State of Washington on Thursday in a decision that 
also cast doubt on whether the 20-year-old federal sentencing guidelines 
can survive a constitutional challenge.

Bitterly split in a 5-to-4 decision that cut across the court's usual 
ideological lines, the justices continued a profound five-year-long debate 
over the respective roles of judges and juries in criminal sentencing. In 
this case, they ratcheted that debate up to a new level that left the 
federal guidelines in constitutional limbo and cast doubt on the validity 
of thousands of sentences, at both the state and federal level.

Sentencing in about a dozen states is likely to be affected by the ruling.

In a separate decision, the court rejected the retroactive application of a 
2002 death penalty ruling, placing as many as 100 inmates in five states 
back on death row.

In the Washington guidelines case, Justice Antonin Scalia's majority 
opinion held that the Washington system, permitting judges to make findings 
that increase a convicted defendant's sentence beyond the ordinary range 
for the crime, violated the right to trial by jury protected by the Sixth 
Amendment. The facts supporting increased sentences must be found by a jury 
beyond a reasonable doubt, Justice Scalia said.

While the federal system is considerably more complex, it places judges in 
much the same role, empowering them to make the factual findings that 
determine the ultimate sentence and requiring nothing more to support those 
findings than a "preponderance of the evidence." That is the legal system's 
lowest standard of proof, while "beyond a reasonable doubt" is its highest.

While Justice Scalia said that "the federal guidelines are not before us, 
and we express no opinion on them," that statement appeared to be simply 
marking time.

"There is nothing to suggest that the federal guidelines would get 
different treatment," Stephanos Bibas, a former federal prosecutor who is 
now a sentencing expert at the University of Iowa law school, said in an 
interview.

In a dissenting opinion, Justice Sandra Day O'Connor depicted the federal 
guidelines as being now in peril. "What I have feared most has now come to 
pass," Justice O'Connor said, referring to her own dissenting positions in 
the recent precedents that brought the court to this moment. "Over 20 years 
of sentencing reform are all but lost, and tens of thousands of criminal 
judgments are in jeopardy," she added.

The vote in this case, Blakely v. Washington, No. 02-1632, was the same as 
the vote in Apprendi v. New Jersey, the case the court decided almost 
precisely four years ago that began the constitutional revolution in 
criminal sentencing that is now playing out.

As it was then, the majority on Thursday was composed of Justices John Paul 
Stevens, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg, in 
addition to Justice Scalia. The dissenters, in addition to Justice 
O'Connor, were Chief Justice William H. Rehnquist and Justices Anthony M. 
Kennedy and Stephen G. Breyer, the latter an author of the federal system 
when he worked for the Senate Judiciary Committee as its chief counsel in 
the late 1970's. As a federal appeals court judge, he then served on the 
United States Sentencing Commission.

In the Apprendi case, the court invalidated New Jersey's hate-crime 
statute, which increased the sentence for an ordinary crime if a judge 
found that the act was motivated by bias. Other than a previous conviction, 
the Supreme Court ruled then, "any fact that increases the penalty for a 
crime beyond the prescribed statutory maximum must be submitted to a jury 
and proved beyond a reasonable doubt."

As Justice Scalia elaborated on Thursday, the purpose of that rule was "to 
give intelligible content to the right of jury trial," which he said the 
Constitution's framers saw as a "circuit breaker in the state's machinery 
of justice." He said the Apprendi decision "carries out this design by 
ensuring that the judge's authority to sentence derives wholly from the 
jury's verdict."

In the case before the court on Thursday, a man pleaded guilty to 
kidnapping his estranged wife, a crime that under Washington law ordinarily 
carries a maximum sentence of 53 months. At sentencing, however, the judge 
added an extra 37 months, based on his finding that the defendant, Ralph H. 
Blakely, Jr., had acted with "deliberate cruelty."

Washington's statutory maximum sentence for kidnapping is 10 years, well 
above what Mr. Blakely received. But the principle of the Apprendi decision 
still invalidated his sentence, Justice Scalia said, because it depended on 
a judicial rather than a jury finding of a fact that added 70 percent to 
the sentence Mr. Blakely would otherwise have received. Mr. Blakely had a 
right to the lower sentence but for the judge's intervention, Justice 
Scalia said.

Juries, rather than "a lone employee of the state," should make these 
decisions, Justice Scalia said.

The decision overturned a ruling by the Washington Supreme Court, which had 
upheld the state system. While several high courts in states with 
guidelines systems have likewise rejected constitutional challenges based 
on the Apprendi precedent, one court, the Supreme Court of Kansas, struck 
down its system, which the state then quickly modified.

According to various lists, which may not be definitive, states that use 
systems similar to Washington's are Alaska, Arkansas, Florida, Michigan, 
Minnesota, North Carolina, Ohio, Oregon, Pennsylvania and Tennessee.

In her dissenting opinion, Justice O'Connor said the court had entered 
"uncharted territory." She said the guidelines systems represented an 
effort to treat like cases alike, giving "guided discretion" to judges 
while eliminating wide disparities in sentencing that turned on judicial 
"idiosyncrasies" or racial bias.

"It is difficult for me to discern what principle besides doctrinaire 
formalism actually motivates today's decision," she said.

Justice Breyer, in his dissenting opinion, said the criminal justice system 
was now left with a range of unattractive options, including such steps as 
separate jury trials for sentencing, a system now reserved for death 
penalty cases. As a practical matter, he said, such a system would be 
workable only because most defendants forego trials and plead guilty.

Whether criminal defendants as a whole are likely to be helped or hurt by 
the ruling is open to debate. The National Association of Criminal Defense 
Lawyers and the American Civil Liberties Union filed briefs on Mr. 
Blakely's behalf. But Justice Breyer suggested that one legislative 
response to the ruling might be "astronomically high sentences," from which 
judges could depart downward at their discretion.

Justice Kennedy's brief dissenting opinion said the court had both ignored 
principles of federalism and had failed to respect the need for "the 
dynamic and fruitful dialogue between the judicial and legislative branches 
of government that has marked sentencing reform on both the state and the 
federal levels for more than 20 years."

The wait for a resolution of the fate of the federal guidelines may not be 
long. Defense lawyers are likely to be quick to challenge the guidelines 
and federal judges, many of whom have disliked the system, may be receptive 
to the arguments. Even before the decision, a federal district judge in 
Massachusetts last week issued an impassioned denunciation of the guidelines.

Once there is a district court decision that is suitable for appeal, the 
Justice Department might well move to bring it directly to the Supreme 
Court, under a permissible but rarely used procedure.

Any ruling will apply to all cases still on direct appeal, but would not 
necessarily be retroactive. In a death penalty case today, the court ruled 
that a 2002 decision invalidating the death penalty laws of five states 
could not be applied retroactively to death sentences that were already 
final when it was issued.

The 2002 decision, Ring v. Arizona, was itself an application of the 
Apprendi decision to laws that permitted judges rather than juries to make 
the finding that placed a murder defendant in the category of those 
eligible for a death sentence. In addition to Arizona, the states were 
Colorado, Idaho, Montana and Nebraska. All quickly changed their laws to 
conform to Apprendi, leaving in doubt the status of those inmates who had 
previously been sentenced to death.

The United States Court of Appeals for the Ninth Circuit then ruled that 
the decision was retroactive, thus invalidating as many as 100 death 
sentences. But the Supreme Court on Thursday overturned that ruling, 
finding the retroactivity analysis incorrect. Justice Scalia wrote the 
majority opinion in Schriro v. Summerlin, No. 03-526. Justices Breyer, 
Stevens, Souter and Ginsburg dissented. 
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MAP posted-by: Richard Lake