Pubdate: Thu, 13 Jan 2005
Source: Pittsburgh Post-Gazette (PA)
Copyright: 2005 PG Publishing
Contact:  http://www.post-gazette.com/
Details: http://www.mapinc.org/media/341
Author: Michael McGough, Post-Gazette National Bureau
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/federal+sentencing+guidelines
Bookmark: http://www.mapinc.org/topics/Blakely
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

SENTENCING GUIDELINES TOSSED OUT

Supreme Court Keeps Federal Strictures As Only Advisory

WASHINGTON -- The U.S. Supreme Court yesterday ruled, 5-4, that
federal judges violate the Constitution when they increase the prison
time of criminals based on aggravating factors -- such as the use of a
gun or the quantity of illegal drugs -- that weren't proved to a jury
beyond a reasonable doubt.

In a separate 5-4 opinion by a different alignment of justices, the
court held that, although it was unconstitutional for Congress to
require federal judges to follow guidelines formulated by the U.S.
Sentencing Commission, the guidelines can remain on the books as an
"advisory" resource for judges.

The practical effects of the complex decision are difficult to
predict.

Federal judges long have chafed under the strictures of the
guidelines, which, despite their name, require judges in most cases to
sentence within ranges based on aggravating and mitigating factors as
well as a defendant's past offenses. But the fact that the guidelines
will still play an "advisory" role could deter judges from varying
from them too dramatically, lest the sentences be challenged on appeal.

Another open question is whether the Supreme Court decision will apply
retroactively. The court did say its decision would apply to pending
appeals.

In an interview last night on PBS's "NewsHour With Jim Lehrer," Mary
Beth Buchanan, the U.S. Attorney in Pittsburgh, said the Justice
Department was pleased that the court didn't strike down the
guidelines but disappointed that they now will be only advisory. She
said prosecutors would continue to consult the guidelines in
recommending sentences to federal judges.

Yesterday's ruling came in two drug cases that were argued on the
first day of the court's term in October. It took the form of an
unusual two-part decision in which only one justice -- Ruth Bader
Ginsburg -- signed both majority opinions.

In the first majority opinion, Justice John Paul Stevens said criminal
sentences in federal courts were governed by the court's ruling in a
Washington state case last June. In Blakely v. Washington, the court held
that under the Sixth Amendment any fact that increases a defendant's time
in prison must be proved to a jury. Stevens was joined yesterday in his
majority opinion by the same four justices who sided with him in Blakely:
Antonin Scalia, David H. Souter, Clarence Thomas and Ginsburg.

Although Stevens' majority opinion yesterday said the "application" of
the federal guidelines in the two drug cases to increase punishment
violated the Sixth Amendment, the opinion did not declare that the
guidelines themselves were unconstitutional. In a separate opinion
signed only by him, Souter and Scalia, Stevens suggested that federal
judges could still be bound by the guidelines so long as aggravating
factors were proved to juries.

But a different majority -- consisting of Ginsburg plus the four
dissenters in Blakely -- declared that, under the reasoning of
Stevens' opinion, two features of the guideline system were
unconstitutional and had to be "severed" from the law.

In this second opinion -- written by Justice Stephen Breyer and joined
by Ginsburg, Chief Justice William Rehnquist and Justices Anthony
Kennedy and Sandra Day O'Connor -- the court threw out two provisions:
a requirement that judges "shall" impose a sentence within the range
suggested by the guidelines, and another establishing standards for
appeals courts to use when a sentence is appealed.

The result, Breyer said, was that while the guidelines are no longer
mandatory, sentencing judges must continue to "take account" of the
sentence ranges provided by the Sentencing Commission. Moreover, he
wrote, under parts of the sentencing law still on the books, appeals
courts must review sentences to see if they are "unreasonable."

Breyer said that in excising the two provisions, the court had found a
way to honor Congress' commitment to reducing sentencing disparities
while still giving force to the conclusion in Stevens' majority
opinion that judges couldn't use the guidelines to punish defendants
for conduct not proved to a jury. Breyer said his solution was
preferable to invalidating the entire sentencing law or following
Stevens' suggestion that juries rather than judges be asked to decide
whether a defendant should receive extra punishment for conduct such
as using a gun in a robbery.

In separate dissents, Stevens and Scalia ridiculed what Stevens called
Breyer's "wholesale rewriting" of federal sentencing law.

Stevens minimized the practical effects of applying the Blakely
decision to federal sentences, 97 percent of which result from plea
bargains rather than jury trials. He noted that the Department of
Justice already has adjusted to the implications of the Blakely
decision by including aggravating factors in indictments and requiring
defendants who plead guilty to waive any challenge based on Blakely.

Scalia accused Breyer of taking the law into a "Wonderland," in which
sentencing guidelines are no longer mandatory but in which they might
be used as a benchmark of "reasonableness" by some, but not all,
appeals courts. The result, he said, will be greater disparity in punishment.

"What I anticipate," Scalia wrote, "is that 'unreasonableness' review
will produce a discordant symphony of different standards, varying
from court to court and judge to judge."

Some experts on sentencing agreed. Calling yesterday's decision a
"mess," Ohio State University law professor Douglas Berman said: "This
is going to be applied in diverse and dramatically different ways in
the lower courts."

For students of the Supreme Court's internal politics, the split
decision yesterday reflected the influence of Breyer, who worked on
sentencing reform as the Senate Judiciary Committee's chief counsel in
1979 and 1980 and served on the Sentencing Commission from 1985 to
1989. "This is Breyer's revenge," said Berman. "He loves the world he
created and wants to hold onto it any way he can."

Congress is free to revise the federal sentencing system so long as
juries, not judges, are given the responsibility for determining
whether a defendant's conduct justifies additional punishment. It
could even abolish the sentencing guidelines, returning the system to
the days when judges had broad discretion to sentence defendants
within minimum and maximum terms. In his opinion, Breyer conceded that
"the ball now lies in Congress' court."

Sen. Arlen Specter, R-Pa., who as the Judiciary Committee chairman
would preside over any rewriting of sentencing law, reacted cautiously
to yesterday's ruling. "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," he said. 
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MAP posted-by: Richard Lake