Pubdate: Wed, 07 Jul 2004
Source: Wall Street Journal (US)
Copyright: 2004 Dow Jones & Company, Inc.
Contact:  B Pg 1
Website: http://www.wsj.com/
Details: http://www.mapinc.org/media/487
Author: Laurie P. Cohen

SENTENCE RULING PROMPTS MEMO TO PROSECUTORS

The Department of Justice is telling federal prosecutors to bring
fresh indictments against certain defendants to guard against any
impact from a recent Supreme Court decision involving sentencing rules.

Deputy Attorney General James Comey, in a July 2 memo, also instructed
prosecutors to "immediately" seek waivers from all defendants who
agree to plead guilty to bar them from later using the Supreme Court
ruling as a basis to challenge their plea agreement.

The high court decision last month said that judges can't act alone
to increase prison sentences based on facts that juries never consider
or that defendants don't plead to. The ruling applied to state
sentencings, and the Justice Department memo repeated the
administration's stance that it doesn't apply to federal sentencing
guidelines -- while at the same time instituting precautions intended
to make sure the ruling won't result in lower sentences in federal
cases.

The ambiguous position reflects the confusing stance the government
took in March when it argued the case, called Blakely v. Washington,
before the Supreme Court. In a brief supporting the state of
Washington, the government said that while it believed that the case
didn't apply to the federal system, it feared its effect could prove
"impossibly cumbersome" for juries.

In a 5-4 vote, the Supreme Court overturned the sentence of a
Washington state man a judge had sentenced to more than three years
above the 53-month maximum called for in the state's guidelines.

The court said the sentence violated the defendant's Sixth Amendment
right to a jury trial when it considered factors that weren't charged
in the indictment or decided by a jury. The court left open the
question of whether its opinion applied to federal guidelines.

Several judges have ruled in the last week that the decision does
also apply at the federal level. It is likely that one or more of
these recent rulings will be considered by the Supreme Court in the
next year.

In his memo, Mr. Comey said prosecutors "should immediately begin to
include in indictments all readily provable [sentencing] guidelines"
that could boost a defendant's sentence. "It is prudent for the
government to protect against the possibility that such allegations in
indictments will be held necessary," he said.

He also said that in pending prosecutions that haven't resulted in
plea deals or a trial, prosecutors should obtain new indictments that
allege all "readily provable" factors that could be used to boost the
defendant's sentence, except for prior convictions.

Several prosecutors yesterday balked at Mr. Comey's memo because they
said it would force them to do much more work in crafting indictments
for the less than 5% of all cases that go to trial instead of ending
in a plea deal. These prosecutors also will face an increased burden
of proof, for if a defendant goes to trial the prosecutors will be
forced to prove certain factors beyond a reasonable doubt that
traditionally have never been considered by juries.

In white collar cases, for example, juries may be required to rule on
the size of financial losses and the number of victims, facts that
were previously decided by judges. Jury trials are expected to last
longer since jurors will be asked to decide issues previously
considered by judges at the time of sentencing.

Mr. Comey said in his four-page memo that if courts disagree with the
government's legal position, judges should instead impose a sentence
within the maximum and minimum terms set by Congress and used before
the federal sentencing guidelines took effect in 1987. He said in this
instance, the government should argue that judges impose sentences
"consistent with what would have been the guidelines sentence."

That is precisely the model that U.S. District Judge Paul G. Cassell
used last week when he became the first federal judge to strike down
the federal sentencing guidelines, citing the Supreme Court ruling.
Ruling on the sentencing of a Utah man who pleaded guilty to sexually
exploiting his adopted daughter, Judge Cassell sentenced the man to 12
years in prison, saying he reached the sentence using the statutory
maximum and minimum sentences. The sentence, however, fell squarely
within the range prescribed by the federal guidelines.

Many federal judges, though not Judge Cassell, have been vociferous
opponents of the federal guidelines system because it limits their
sentencing discretion.

The statutory sentencing system gives judges more discretion to
consider factors that enable them to reduce a defendant's sentence
than the federal one. Indeed, Judge Cassell, in his recent decision,
gave the Utah man, Brent Croxford, a slightly lesser sentence because
Mr. Croxford was, himself, the victim of sexual abuse when he was a
child.

The federal sentencing guidelines, which stemmed from the Sentencing
Reform Act of 1984, prescribe ranges for crimes. Courts generally
select sentences from within the range, based on judges' consideration
of acts or behavior by the defendant that often aren't part of the
charges. Mr. Comey is now telling prosecutors they must allege
relevant behavior or conduct in the indictments if they are seeking
sentences higher than the lowest end of the guidelines range.

To preserve the sanctity of plea deals, which involve the majority of
all federal cases, Mr. Comey directed prosecutors to "immediately seek
to obtain plea agreements that contain waivers of all rights under
Blakely." That would mean that defendants would agree to have
sentences determined under the guidelines, waiving any right to have
juries decide facts that might result in a sentence that is greater
than that called for by the specific offense to which the defendants
pleaded.

Legal experts point out that prosecutors often require defendants to
sign waivers saying they won't challenge their conviction after they
plead guilty, so this would be yet another waiver on top of that one.

Marc L. Miller, a law professor at Emory University in Atlanta who
writes about sentencing issues, said Comey's memo "is saying Blakely
doesn't invalidate the federal guidelines but we can't fully explain
why now."

Mr. Comey's position on Blakely may help defendants somewhat. "Blakely
transfers some of the negotiating power from prosecutors to
defendants," Mr. Miller said. "It provides some leverage to defendants
in negotiations."

Still, Mr. Miller said prosecutors continue to control the criminal
legal process by deciding what charges to bring. "There may be a
modest increase in federal trials," he says, adding that would make
for a "healthier system." For the last two decades, since the
sentencing guidelines came into being, fewer defendants have chosen to
go to trial. That is because the guidelines reward defendants who
plead guilty by giving them a lower sentence than they would likely
get if convicted by a jury.

The fallout from the Supreme Court ruling started to be felt on
Capitol Hill yesterday. At a hearing before a subcomittee of the House
Judiciary Committee that is considering a bill to increase mandatory
minimum sentences for drug offenders, Frank O. Bowman III, a law
professor at Indiana University School of Law, testified that
lawmakers should be cautious about adding new complexities to
federal-sentencing law.

"It is not an exaggeration to say that the federal criminal justice
system is in chaos," he said.

Catherine M. O'Neil, associate deputy attorney general, spoke strongly
in favor the measure, which she said would help safeguard children and
recovering drug addicts. Nevertheless, she cautioned that the
department "must reserve opinion, in light of Blakely v. Washington --
a Supreme Court case decided just two weeks ago -- on those sections
of the bill which propose to directly amend the sentencing
guidelines."

Avery Johnson contributed to this article.
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