Pubdate: Thu, 13 Jan 2005
Source: St. Paul Pioneer Press (MN)
Copyright: 2005 St. Paul Pioneer Press
Contact:  http://www.pioneerplanet.com/
Details: http://www.mapinc.org/media/379
Author: Gina Holland, Associated Press
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 IN TURMOIL

Judges Get Leeway in Federal Cases; Flood of Appeals Is Expected

WASHINGTON -- A splintered Supreme Court threw the nation's federal
sentencing system into turmoil Wednesday, ruling that the way judges
have been sentencing some 60,000 defendants a year is
unconstitutional.

In ordering changes, the court found 5-4 that judges have been
improperly adding time to some criminals' prison stays.

The high court stopped short of scrapping the nearly two-decade-old
guideline system, intended to make sure sentences do not vary widely
from courtroom to courtroom.

Instead, the court said in the second half of a two-part ruling that
judges should consult the guidelines in determining reasonable
sentences -- but only on an advisory basis.

How well that will work was immediately questioned.

Justice Antonin Scalia, who voted for the first part of the ruling but
against the second, said the change would "wreak havoc on federal
district and appellate courts quite needlessly, and for the indefinite
future."

"This creates more questions than it answers," said Douglas Berman, an
Ohio State University sentencing expert. "There's going to be lots and
lots of litigation."

It's unclear, legal experts said, how many of the 170,000 federal
inmates have a chance to appeal their sentences as a result of
Wednesday's rulings. But inmates are likely to think they have
appeals, inspiring thousands to file.

Congress may also craft its own solution, and the justices seemed to
expect that.

"Ours, of course, is not the last word. The ball now lies in Congress'
court," Justice Stephen Breyer wrote in one part of the ruling. "The
national legislature is equipped to devise and install, long-term, the
sentencing system, compatible with the Constitution, that Congress
judges best for the federal system of justice."

Senate Judiciary Chairman Arlen Specter, R-Pa., said he would begin
working to "establish a sentencing method that will be appropriately
tough on career criminals, fair, and consistent with constitutional
requirements."

Justice Department officials said they were disappointed in the
ruling, crediting the guidelines with producing tough, uniform
sentences that have helped drive crime rates to 30-year lows. They
said federal prosecutors will continue to urge judges to adhere
closely to the guidelines even though they will be merely advisory.

Christopher Wray, assistant attorney general for the department's
criminal division, said the guidelines have ensured that "similar
defendants who commit similar crimes receive similar sentences.
Because the guidelines are now advisory, the risk increases that
sentences across the country will become wildly inconsistent."

Under the challenged federal court system, juries consider guilt or
innocence but judges make factual decisions that affect prison time,
such as the amount of drugs involved in a crime, the number of victims
in a fraud or whether a defendant committed perjury during trial.

A coalition of liberal and conservative justices said the practice of
judges' acting alone to decide factors that add prison time violates a
defendant's Sixth Amendment right to a jury trial.

That same right-left combination of justices held sway in June in a
state sentencing case that led to the much-anticipated ruling on
federal sentences: Scalia and Justices Clarence Thomas, John Paul
Stevens, David Souter and Ruth Bader Ginsburg.

Ginsburg switched sides in the accompanying vote to salvage the
guidelines by making them non-mandatory, joining fellow Clinton
appointee Breyer along with Chief Justice William Rehnquist and
Justices Sandra Day O'Connor and Anthony Kennedy.

Breyer had a special interest in the case. He worked on the sentencing
law as a Senate Judiciary Committee staff lawyer and served on the
Sentencing Commission, which sets guidelines for judges.

"History does not support a 'right to jury trial' in respect to
sentencing facts," he wrote in a dissent to the main holding in
Wednesday's ruling.

Stevens wrote for the 5-4 majority that elements of a crime "must be
admitted by the defendant or proved to a jury beyond a reasonable doubt."

The rulings spring from a pair of drug cases. One involves Freddie J.
Booker, who was convicted in Madison, Wis., in 2003 of possessing 50
grams of crack cocaine with intent to sell; another involves Ducan
Fanfan, convicted in Maine in 2004 of conspiring to sell more than 500
grams of cocaine.

Both were in possession of far more drugs than they were convicted of
having, and under the guidelines, federal judges would have been able
to impose longer sentences based on that fact.

Justices had put the subject on a fast track, scheduling special
arguments on the first day of their nine-month term in October.
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MAP posted-by: Richard Lake