Pubdate: Thu, 13 Jan 2005
Source: Boston Globe (MA)
Copyright: 2005 Globe Newspaper Company
Contact:  http://www.boston.com/globe/
Details: http://www.mapinc.org/media/52
Author: Charlie Savage, Globe Staff
Note: The 124 page ruling is on line as a .pdf document at 
http://www.november.org/Blakely/BookerDecision.pdf
Also: to help understand the decision the blog of Douglas A. Berman, cited 
below, has been 
recommended  http://sentencing.typepad.com/sentencing_law_and_policy/
Bookmark: http://www.mapinc.org/topics/federal+sentencing+guidelines
Bookmark: http://www.mapinc.org/topics/Blakely
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

HIGH COURT OVERTURNS SENTENCING GUIDELINES

But Ruling Will Allow 'Advisory' Use by Judges

WASHINGTON -- The Supreme Court yesterday struck down part of the
18-year-old federal sentencing guidelines, changing the rules used by
judges to send tens of thousands of defendants to federal prison each
year.

The 5-4 ruling, which was not unexpected because it followed closely a
decision from June regarding a sentencing system in the state of
Washington, opens the gates to potential challenges by thousands of
federal inmates who are already serving time.

The high court found that the mandatory sentencing guidelines system
violated the Sixth Amendment right to a jury trial because it required
judges to base part of their sentencing decisions on additional facts,
such as previous criminal history or using a weapon, which a jury did
not specifically find to be true.

But in a dramatic shift dubbed "judicial jujitsu" by one analyst, an
almost entirely different 5-4 majority pulled back from completely
scrapping the sentencing system. Justice Ruth Bader Ginsburg defected
from the previous majority and joined the four jurists who had opposed
any changes to the guidelines system -- Chief Justice William
Rehnquist and justices Stephen Breyer, Anthony Kennedy, and Sandra Day
O'Connor -- to make a new majority when it came to deciding what to do
next.

That majority said the sentencing guidelines should be preserved as
"advisory;" judges may consult them in determining a sentence but will
not be bound by them, solving the Sixth Amendment predicament.
Sentences rendered under the new system can be reviewed for
"reasonableness" by appellate judges, Breyer wrote for the majority in
the second part of the decision.

Analysts said the complex decision will enormously increase the
discretionary power of federal judges in the short term, render less
certain what sentence a defendant is likely to receive, and generate a
flood of challenges to individual sentences.

"This is going to be a windfall for people who enjoy litigation," said
Douglas Berman, a law professor at Ohio State University. "There are
170,000 federal inmates right now. There are lots more on probation
and lots more facing charges. There are hundreds of thousands of
people who can walk into court with a nonfrivolous assertion that this
changes their universe."

The decision could also ripple through state systems with similar
sentencing guidelines, though many states are already in the process
of adjusting their guidelines in accordance with a Supreme Court
decision last year limiting Washington state judges' ability to
increase sentences based on additional facts not found by a jury.

In the federal system, some analysts said, Congress is likely to react
to yesterday's decision by passing a law to constrain judges' power,
and in the meantime the ruling still may not result in the early
release of many prisoners because judges will have the power to
reaffirm their earlier decisions.

The court ultimately held that judges will still have to perform the
sentencing guideline calculus -- even if they then choose to ignore
its results -- before imposing a sentence. Both defendants and
prosecutors may appeal a sentence either side feels is unfair.

Since taking effect in 1987 as the centerpiece of efforts to bring
uniformity to the sentences imposed by different judges for similar
crimes, the guidelines had mandated precise prison terms based on
specific circumstances.

Breyer, who was sitting as a federal appeals court judge in Boston
before he joined the high court in 1994, has a longstanding interest
in preserving the sentencing guidelines. He served on the commission
that established them after Congress passed a sentencing reform act in
1984.

Having fought unsuccessfully to preserve guidelines in a string of
cases until now -- including last term's Blakely decision, which
struck down the Washington state guidelines -- Breyer achieved a
last-minute coup in yesterday's case, analysts said.

"It's a remarkable act of judicial jujitsu that Breyer has managed to
pull off," said Frank Bowman, a former federal prosecutor who is now a
law professor at Indiana University.

The majority who voted in the first part of the opinion to find the
mandatory guidelines unconstitutional were Ginsburg, along with
Justices Antonin Scalia, John Paul Stevens, David Souter, and Clarence
Thomas. In a dissent to the second part of the ruling, Scalia
predicted that it "will provoke a discordant symphony" leading to
"excessive sentencing disparities" and will "wreak havoc" on the
judicial system.

Scalia joined Stevens in proposing an alternate system under which the
guidelines would be preserved, but every relevant fact would be
submitted to a jury. That would have had the effect of almost entirely
eliminating input by judges on what sentence a defendant receives.

Assistant Attorney General Christopher Wray said the Bush
administration would urge judges to continue to use the guidelines "to
vindicate the core purposes of sentencing -- that similar defendants,
who commit similar crimes, receive similar sentences."

The decision involved the cases of two federal drug defendants,
Freddie Booker and Duncan Fanfan, who received greater sentences than
the guidelines normally called for based on additional facts
considered by their trial judges but not found by the jury. Fanfan,
who is from Somerville but was arrested and tried in Maine, may
receive a new sentence because of the decision.

The attorney who argued Fanfan's case before the Supreme Court,
Boston-based Rosemary Scapicchio, called the decision a mixed one for
defendants. Those who come before sympathetic judges may be better off
than before, while those who come before harsh ones may fare worse.

But, she said, at least their jury trial rights have been upheld,
taking away one prosecutorial tactic she called unfair: charging a
defendant with an easy crime to prove, and then bringing up other
alleged crimes in the sentencing hearing -- under a lower standard of
proof -- to convince a judge to impose a longer sentence.

Although the ruling increases the power of federal judges in the short
term, many legal analysts suggested that it will provoke Congress to
pass legislation narrowing the range of allowable sentences for
various crimes. The court majority acknowledged that such a law is
likely.

A law passed by the Republican-led Congress would probably take the
form of imposing higher mandatory minimum sentences for crimes, legal
analysts said. Senate Judiciary Committee chairman Arlen Specter,
Republican of Pennsylvania, hinted yesterday that legislation may
swiftly follow the court's decision.

"I intend to thoroughly review the Supreme Court's decision and work
to establish a sentencing method that will be appropriately tough on
career criminals, fair, and consistent with constitutional
requirements," Specter said.

Senator Edward M. Kennedy, Democrat of Massachusetts, warned against
"rash action by Congress to impose a mandatory sentencing regime on
federal judges," calling for time to give a federal sentencing
commission a chance to recommend reforms.

Kennedy's concern was echoed by Senator Patrick Leahy of Vermont, the
Senate Judiciary Committee's top Democrat.

"Congress should resist the urge to rush in with quick fixes that
would only generate more uncertainty and litigation and do nothing to
protect public safety," Leahy said. "For now, the Supreme Court has
fashioned a reasonable remedy that will allow courts to conduct
business until Congress decides how to act." 
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MAP posted-by: Richard Lake