Pubdate: Thu, 13 Jan 2005
Source: Denver Post (CO)
Copyright: 2005 The Denver Post Corp
Contact:  http://www.denverpost.com/
Details: http://www.mapinc.org/media/122
Author: Alicia Caldwell, Denver Post Staff Writer
Note: The New York Times contributed to this report.
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Sentencing Overruled

JUSTICES: "MANDATORY GUIDELINES" UNCONSTITUTIONAL

The U.S. Supreme Court on Wednesday struck down part of the federal
criminal sentencing system, returning to judges much of the discretion
that mandatory sentencing guidelines had taken from them.

A majority of justices said sentencing guidelines, passed by Congress
in 1984, should be considered advisory.

In Denver, Senior U.S. District Judge John Kane called it a watershed
decision that restores sentencing to a judicial act rather than the
clerical act it has become.

"I think it's a very positive thing because it puts the decisionmaking
responsibility on the person who is supposed to be making the
decision, and that is the judge," Kane said.

The implications of the sweeping ruling were unclear. Some said it
would offer hope to criminal defendants. Others said it probably would
cause only a ripple in the system.

In an unusual two-part decision produced by two groups of justices,
five justices first declared that the current guidelines system
violated defendants' rights to trial by jury.

A different group of justices then applied a remedy to make the
sentencing guidelines advisory rather than mandatory.

Judges "must consult" the guidelines and "take them into account,"
Justice Stephen Breyer said for the majority in this portion of the
decision. But the guidelines ultimately must be advisory only, with
sentences to be reviewed on appeal for "reasonableness." He was joined
by Justices Ruth Bader Ginsburg, Sandra Day O'Connor and Anthony
Kennedy and Chief Justice William Rehnquist.

Justices John Paul Stevens, Antonin Scalia, David Souter, Clarence
Thomas and Ginsburg said defendants' right to trial by jury was
violated by giving judges the power to make factual findings that
increased sentences beyond the maximum that the jury's findings alone
would support.

William Leone, acting U.S. attorney for Colorado, said the sentences
in about 70 percent of the cases that his office handled involved
consideration of such facts, commonly called aggravating and
mitigating factors.

For instance, if a gun was used in a theft but was not an element
essential to proving the crime, under the old system a judge would
consider the use of a gun as an aggravating factor to increase a sentence.

Leone said he didn't expect a massive overturning of sentences. He
said he believes the court did not mean the decision to apply
retroactively.

"I would not anticipate any wholesale revision or reversal of
sentences," Leone said.

In Colorado, aggravating and mitigating factors frequently are
considered in sentences for drug, weapons and corporate fraud cases,
Leone said.

Leone said he thought the decision would encourage a surge in
defendants' appealing their sentences, but he expected that to quickly
abate.

Others, however, were not sure how the decision would change the
landscape.

University of Denver law professor Sam Kamin said the ruling was not a
"Get Out of Jail Free" card but would apply to at least some people
who had been sentenced unconstitutionally.

Kamin surmised that a defendant's position in the pipeline of justice
would play a significant part in the viability of his or her appeal.

Those who have exhausted their appeals and are in prison probably have
the bleakest hopes. Those who have raised guideline issues at
sentencing or in appeals and those who have not yet been sentenced
have better chances, he said.

The Sentencing Reform Act of 1984, which took effect in 1987, was
designed to remedy sentencing disparity, requiring the same punishment
for the same crime.

But Kane, the Denver federal judge, criticized the system for
attempting to apply a one-size-fits-all approach to justice.

On their face, "mandatory guidelines" are an oxymoron that "only
someone in Washington could dream up," Kane said.

Dan Sears, a Denver defense lawyer and former federal public defender,
said he was one of five public defenders who lobbied Congress against
installation of the guidelines.

He said the Supreme Court decision means judges will have to decide
cases on a "rational basis."

"Essentially what (the decision) has done is given back to the judges
quite a degree of sentencing discretion that the guidelines previously
stripped them of," Sears said.

The new sentencing structure presumably takes effect immediately, said
Kamin and others.

Denver lawyer Sean Connolly said it probably will take several years
to see how courts define the "reasonableness" of sentences and to
spell out what "advisory" means.

"My question is, how closely will judges be required to listen to that
advice?" Connolly said.
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MAP posted-by: Richard Lake