Pubdate: Thu, 13 Jan 2005
Source: Los Angeles Times (CA)
Copyright: 2005 Los Angeles Times
Contact:  http://www.latimes.com/
Details: http://www.mapinc.org/media/248
Author: David G. Savage,  Times Staff Writer
Note: The 124 page ruling is on line as a .pdf document at 
http://www.november.org/Blakely/BookerDecision.pdf
Bookmark: http://www.mapinc.org/topics/Blakely
Bookmark: http://www.mapinc.org/topics/federal+sentencing+guidelines
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

COURT GIVES JUDGES GREATER SENTENCING FLEXIBILITY

WASHINGTON -- The Supreme Court ruled Wednesday that judges are free to 
mete out prison terms that are shorter or longer than those called for 
under federal sentencing guidelines.

The current sentencing rules can stand, the justices said, as long as they 
are considered "advisory," not mandatory.

The decision, coming after recent Supreme Court opinions that had cast 
doubt on the future of the guidelines, was seen as a victory for the 
judiciary and a setback for lawmakers who would like to limit judges' 
sentencing authority.

By basically preserving the current system, Wednesday's ruling is not 
likely to have a broad impact on criminals serving federal terms or those 
awaiting sentence. It is unclear what effect it will have on future sentencing.

"There are going to be a lot of disappointed criminals in federal prison 
today," said Kent Scheidegger of the Criminal Justice Legal Foundation, a 
Sacramento, Calif.-based organization that supports the rights of crime 
victims.

The guidelines were considered mandatory when they were adopted in 1987 in 
an effort to ensure that defendants received similar sentences for similar 
crimes, whether they came before a conservative judge in Dallas or a 
liberal judge in Boston.

Judges were instructed that certain factors called for a higher or lower 
prison term. For example, if a drug dealer was shown to have had a huge 
quantity of drugs and money in his house and been part of a larger 
operation, sentencing rules called for the judge to add extra years to his 
prison term. So a dealer facing five years in prison based on the jury's 
verdict could be sentenced to 25 years or more based on sentencing factors 
cited by the judge.

But critics said the system gave too much clout to judges and prosecutors. 
And until Wednesday, the Supreme Court majority seemed to agree.

In June, a 5-4 majority struck down the sentencing system used in 
Washington state courts, saying it gave judges too much power. The court 
said a defendant's right to a jury trial included the right to have the key 
sentencing factors decided by a jury, not by the judge.

Justices Antonin Scalia, John Paul Stevens, David H. Souter, Clarence 
Thomas and Ruth Bader Ginsburg formed the majority in that decision. 
Justice Stephen G. Breyer issued the dissent, warning that the Supreme 
Court would wreak havoc if it followed the same approach and struck down as 
unconstitutional the nearly identical federal sentencing system. More than 
60,000 federal criminals are sentenced each year and, in theory, a similar 
ruling involving the federal bench could have upset all those prison terms.

Instead, a new 5-4 majority -- with Ginsburg this time joining Breyer, 
Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and 
Sandra Day O'Conner -- on Wednesday found a way to save the federal 
sentencing system by tweaking it slightly.

"The effect of our (decision) is that the federal sentencing guideline 
system will remain in existence, not as a mandatory system, but as an 
advisory system," Breyer wrote; as a Senate Judiciary Committee lawyer, he 
had helped to craft the federal sentencing rules.

"Without its 'mandatory' provision and related language, the (Sentencing 
Reform) Act remains consistent with Congress's basic sentencing intent," 
Breyer wrote.

Ginsburg did not explain her decision in the case.

In his dissent, Scalia called the court's approach "wonderfully ironic: In 
order to rescue from nullification a statutory scheme designed to eliminate 
discretionary sentencing (by judges), it discards the provisions that 
eliminate discretionary sentencing."

For months, judges, prosecutors and defense lawyers across the United 
States had been expecting the federal guidelines to be overturned. On 
Wednesday afternoon, Justice Department prosecutors sounded both relieved 
and dismayed.

"There is some good and some bad," Assistant Attorney General Christopher 
Wray, the chief of the criminal division, said. "Although we are pleased 
that the Supreme Court did not find the federal sentencing guidelines to be 
unconstitutional, we're disappointed the decision made the guidelines 
advisory in nature."

Tim Lynch of the libertarian Cato Institute praised the ruling, saying that 
judges now would have more freedom in sentencing.

"The ... ruling will have the effect of shifting power back to the 
judiciary. The net effect will be an improvement in the administration of 
justice because we are more likely to find wisdom and prudence from 
impartial judges than from partial prosecutors," Lynch said.

States with mandatory sentencing guidelines could overcome the problem 
presented by the Supreme Court's June ruling by doing what the Supreme 
Court did Wednesday, simply say the rules are advisory, not mandatory.

In his opinion, Breyer noted that Congress could act to change the system. 
"The ball lies in Congress' court," he wrote. But it is not clear lawmakers 
can do much, since the court's opinion Wednesday also said that they may 
not impose a mandatory system of sentencing rules on judges. 
- ---
MAP posted-by: Richard Lake