Pubdate: Thu, 13 Jan 2005
Source: Register-Guard, The (OR)
Copyright: 2005 The Register-Guard
Contact:  http://www.registerguard.com/
Details: http://www.mapinc.org/media/362
Author: Linda Greenhouse, The New York Times
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
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

HIGH COURT WEAKENS SENTENCING GUIDELINES

WASHINGTON - The Supreme Court on Wednesday transformed federal criminal 
sentencing by restoring to judges much of the discretion that Congress took 
away 21 years ago when it put sentencing guidelines in place and told 
judges to follow them.

The guidelines, intended to make sentences more uniform, should be treated 
as merely advisory in order to cure a constitutional deficiency in the 
system, the court held in an unusual two-part decision produced by two 
coalitions of justices.

In the first part, five justices declared that the current guidelines 
system violated defendants' rights to trial by jury by giving judges the 
power to make factual findings that increased sentences beyond the maximum 
that the jury's findings alone would have supported.

That portion of the opinion had been widely anticipated, growing directly 
out of a similar conclusion the same five justices - John Paul Stevens, 
Antonin Scalia, David Souter, Clarence Thomas and Ruth Bader Ginsburg - 
reached last June in invalidating the sentencing guidelines system in the 
state of Washington.

The real question hanging over the case, which the court heard in October 
on the opening day of its new term, was how the justices would solve the 
problem.

So it was the second part of the decision - the remedy - that was the 
surprise and that will shape the continuing debate over sentencing policy. 
With Ginsburg joining the four justices who dissented from the first part - 
Stephen Breyer, Sandra Day O'Connor, Anthony Kennedy and Chief Justice 
William Rehnquist - a separate coalition said the problem could be fixed if 
the guidelines were treated as discretionary rather than mandatory.

 From now on, Breyer said, writing for the majority in this portion of the 
decision, judges "must consult" the guidelines and "take them into account" 
in imposing sentences. But the guidelines will be advisory only, with 
sentences to be reviewed on appeal for "reasonableness."

Lawmakers and legal experts predicted Wednesday that the court's decision 
would renew the struggle between Congress and the judiciary for control 
over sentencing. On Capitol Hill, some members of Congress made it clear 
that they were bracing for a fight over how much discretion federal judges 
should have.

The decision leaves many unanswered questions. But it will be in the 
federal appeals courts that the decision's real meaning will emerge, as 
those courts build a body of law evaluating the "reasonableness" of sentences.

The remedy devised by Breyer's five-member majority had not been proposed 
by any party, although the Justice Department suggested a form of advisory 
guidelines as a fallback position to its defense of the system's 
constitutionality.

In a series of cases, the court has held that given the Sixth Amendment 
right to trial by jury, judges cannot impose sentences beyond the 
"prescribed statutory maximum" unless the facts supporting such an increase 
are found by a jury beyond a reasonable doubt.

The constitutional cloud over federal criminal sentencing rested in the 
mandatory nature of the guidelines, which instruct judges to consider 
various facts, such as a defendant's leadership role in a criminal 
enterprise, and to increase sentences accordingly. The court made it clear 
in the Washington state case last June that the top of an ordinary 
guideline range was the equivalent of a statutory maximum.

But if judges simply exercise their traditional sentencing discretion, 
advised by guidelines but not bound by them, the defendant's Sixth 
Amendment right is not implicated, a conclusion on which all nine justices 
agreed on Wednesday.

In other words, as judges' flexibility grows, defendants' Sixth Amendment 
protections shrink.

The dispute on the court was not over that paradoxical proposition, but 
rather over how Congress would have chosen to proceed if it had known of 
the Sixth Amendment issue when it put the guidelines system in place in the 
Sentencing Reform Act of 1984. 
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MAP posted-by: Richard Lake