Pubdate: Thu, 13 Jan 2005
Source: Seattle Times (WA)
Copyright: 2005 The Seattle Times Company
Contact:  http://www.seattletimes.com/
Details: http://www.mapinc.org/media/409
Author: Jan Crawford Greenburg, Chicago Tribune
Note: Information from The Washington Post is included in this report. 
Seattle Times staff reporter Michael Ko contributed to this report.
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 LOOSENS CRIMINAL SENTENCING GUIDELINES

WASHINGTON -- The Supreme Court yesterday dramatically changed how criminal 
defendants are sentenced in federal court, a decision that calls into 
question thousands of sentences across the country and throws open how the 
federal government investigates, charges and negotiates with accused criminals.

In a 5-4 opinion by Justice Stephen Breyer, the court said the federal 
sentencing guidelines, which have provided judges with set formulas to 
calculate sentences for almost 18 years, were not mandatory. Judges, the 
court said, were not always required to follow them.

Yesterday's outcome emerged from unusual twin majority opinions in United 
States v. Booker and United States v. Fanfan. One group of five justices 
said the current administration of the guidelines violates defendants' 
right to a jury trial because judges impose sentences under them based on 
facts that a jury did not find beyond a reasonable doubt. Another group of 
five justices explained why the guidelines must nevertheless continue to 
shape sentencing decisions even if judges are no longer legally bound to 
follow them.

It comes on the heels of a 5-4 ruling last June that Washington state's 
sentencing-guideline system was unconstitutional.

Criminal defense lawyers and legal observers predicted confusion and 
inconsistency in sentences, as lower courts try to make sense of the 
Supreme Court's pronouncements.

The decision yesterday for which Breyer wrote the major opinion appears to 
give judges significantly more discretion in how they sentence defendants, 
an outcome the guidelines were designed to curtail. It also is likely to 
immediately bring Congress back into the sentencing arena to take that 
discretion away. In his opinion, Breyer acknowledged that "ours, of course, 
is not the last word: The ball now lies in Congress' court."

Gregory Poe, a Washington, D.C., attorney and former federal defender, 
said, "Congress is likely to make changes. And there is great concern that 
Congress may have an appetite to create a system applying strict penalties 
regardless of the merits in individual cases."

Although the court's decision does not appear to reach back and affect 
cases that have been decided already, it nonetheless could give "hundreds 
of thousands of defendants" an argument to the contrary, said Douglas 
Berman, a professor at the Ohio State University Law School. Others said 
the ruling threatens to undo years of sentencing reform at the federal 
level and stop state efforts to develop uniform guidelines. The decision, 
they said, could create wildly divergent sentences for similarly situated 
defendants, based simply on which courtroom their case ends up in.

Frank Bowman, a professor at the Indiana University School of Law and a 
leading expert on the guidelines, said, "There is one thing that appears to 
be clear: The court has, by either judicial fiat or an act of statutory 
interpretation, created a system of advisory guidelines which, I think you 
can at least argue, give federal trial judges the greatest sentencing power 
they've ever had."

Assistant Attorney General Christopher Wray said the Justice Department was 
"disappointed" that the court had made the guidelines advisory in nature, 
but emphasized that the opinion makes clear that trial judges still are 
required to consult the guidelines in making sentencing decisions.

Led by Justice Antonin Scalia, an unusual coalition of liberal and 
conservative justices had joined forces to say that juries -- not judges -- 
should decide key facts in a case, if those facts would enhance a 
defendant's sentence. That group -- Scalia, John Paul Stevens, David 
Souter, Clarence Thomas and Ruth Bader Ginsburg -- joined to strike down a 
sentencing system in Washington state last June, in a decision called 
Blakely v. Washington.

That decision caused chaos in lower federal courts. Dissenting justices in 
Blakely had warned that the reasoning in the decision would undermine the 
federal sentencing guidelines, and lawyers immediately began challenging 
sentences based on those assumptions.

Some lower courts took the Blakely decision to undermine the federal 
guidelines, as well, since they require judges to decide facts -- such as 
the amount of drugs in question -- when calculating sentences. Others took 
a different view.

The Supreme Court agreed last summer to decide the issue on an expedited 
basis, and after arguments on the first day of the court's term in October, 
most expected the five to again come together and say juries must decide 
those critical facts if they would enhance a sentence.

After news of the ruling, U.S. District Judge Robert Lasnik huddled with 
his fellow federal judges in Seattle. Afterward, he described the decision 
as "good news" and said "the end result is that judges will have more 
discretion than they have had."

John McKay, the U.S. attorney for Western Washington, said, "The full 
impact of this decision will not be known until we see how our 
distinguished federal bench uses the additional discretion created by this 
opinion." He said the ruling probably would not be applied retroactively to 
those cases in which "the conviction has long since become final."

About 600 defendants were indicted last year in the Western District of 
Washington, McKay said. Approximately 25 appeals might be affected by this 
ruling.

Tom Hillier, the federal public defender for Western Washington, said he 
believes federal judges in this area will lean toward more lenient sentences.

"My feeling is that the defendants in this district are going to fare 
better than they would under the [mandatory] guideline scheme," Hillier 
said. "Frequently, judges within this district have found that the 
sentencing ranges were much too severe."
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MAP posted-by: Richard Lake