Pubdate: Thu, 13 Jan 2005
Source: San Jose Mercury News (CA)
Copyright: 2005 San Jose Mercury News
Contact:  http://www.mercurynews.com/
Details: http://www.mapinc.org/media/390
Author: Howard Mintz, Mercury News
Bookmark: http://www.mapinc.org/topics/federal+sentencing
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JUSTICES' REVISION OF SENTENCING RULES AFFECTS THOUSANDS

Ushering in an age of uncertainty in federal sentencing rules, a
splintered U.S. Supreme Court on Wednesday cast doubt on thousands of
prison terms imposed on criminals ranging from drug dealers to
corporate executives.

The high court, split 5-4 in six separate opinions, concluded that
much of the 20-year-old federal sentencing system is unconstitutional
because it has allowed judges to increase sentences based on facts
never considered by juries. The justices did not scrap the rigid
guidelines designed to create national uniformity in punishment, but
diminished their power and appeared to give judges more flexibility in
deciding prison time.

For thousands of federal defendants across the country, including
convicted felons in the Bay Area, the ruling could mean new sentencing
hearings and a chance for reduced prison terms. Prominent criminals
such as former Silicon Valley investment banker Frank Quattrone,
convicted in New York last year of obstruction charges, can ask the
courts to revisit their punishment as a result of the Supreme Court
ruling.

Legal experts agreed that the ruling will spawn a new generation of
endless court fights over sentences, and perhaps raise issues for
state systems such as California's.

They also predicted that Congress may want to immediately rein in the
judiciary by creating tough minimum prison terms for more crimes.

"The biggest fear is the 800-pound gorilla called the United States
Congress is going to flatten the criminal sentencing system in the
federal courts," said Barry Portman, the longtime chief federal
public defender in Northern California.

Prosecutors, defense lawyers and judges across the country have been
eagerly awaiting the ruling since the summer, when the Supreme Court
struck down Washington state's sentencing system and then agreed to
consider whether that ruling applies to the federal system.

The federal guidelines are similar to Washington's. They establish
boundaries for prison time based on factors such as nature of a crime
and criminal history.

Judicial Discretion

Until recent legal challenges, judges could increase prison terms
based on factors not presented to a jury. Prosecutors, for example,
often present evidence at sentencing of a larger scope of drug dealing
than detailed at trial.

The Supreme Court found that practice unconstitutional because it
deprives defendants the right to have their fate determined by juries.

Congress enacted the guidelines in the mid-1980s in response to
concern about widespread disparities in sentences for the same crimes
in different parts of the country. The question now is the guidelines'
status, and the extent to which the Supreme Court's ruling restores a
judge's power to disregard them.

About 60,000 defendants are sentenced each year in the federal courts,
although most are sentenced after plea deals. For years, many legal
experts and judges have chafed under the guidelines, calling them too
rigid. But advocates have praised them for producing more consistent
sentencing and preventing judges from giving overly soft prison terms.

Rory Little, a Hastings College of the Law professor and expert on the
federal sentencing system, said the Supreme Court struck a sensible
compromise that would protect against unjust sentences. Little expects
plenty of activity in the lower and appeals courts.

"You'll see a lot of resentencing and a lot of defendants will get
benefits out of this," he said.

Wave of New Hearings

Since the Supreme Court ruled in the Washington case, federal judges
have been postponing sentences, appeals have been left hanging and
federal prosecutors have been forced to change the way they craft
indictments. San Jose U.S. District Judge Ronald Whyte even took the
unprecedented step of convening a special jury to decide a sentencing
issue in one weapons case.

Justice John Paul Stevens, writing for the majority, decided one
aspect of the case by rejecting the Justice Department's argument that
last year's ruling in the Washington case did not apply to the federal
system. Justice Stephen Breyer, writing for a different collection of
justices, then resolved the thorniest part of the case, concluding
that the federal sentencing guidelines would now be considered
"advisory" for judges instead of binding.

In dissent, Justice Antonin Scalia warned that Breyer's reasoning
would undermine the intent of the guidelines. This "will produce a
discordant symphony of different standards, varying from court to
court and judge to judge," Scalia wrote.

The two parts of the decision had different majorities of five
justices, with Ruth Bader Ginsburg being the swing vote on both. On
the issue of constitutionality, Ginsburg joined Stevens, Scalia, David
Souter and Clarence Thomas. But in the second decision, making the
guidelines advisory, Ginsburg switched sides, joining Breyer, Anthony
Kennedy, Sandra Day O'Connor and Chief Justice William Rehnquist.

Many experts predict that Congress will step in to resolve any
uncertainty created by the court's decision. In fact, Breyer, in his
decision, suggested as much.

"Ours, of course, is not the last word," Breyer wrote. "The ball
now lies in Congress' court."
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MAP posted-by: Richard Lake