Pubdate: Thu, 13 Jan 2005
Source: Miami Herald (FL)
Copyright: 2005 The Miami Herald
Contact:  http://www.miami.com/mld/miamiherald/
Details: http://www.mapinc.org/media/262
Author: Stephen Henderson
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

COURT: SENTENCING RULES NOT MANDATORY

The High Court Ruled That Judges Should Consult Federal Sentencing
Guidelines Only on an Advisory Basis. A Flood of Inmate Appeals Is
Likely.

WASHINGTON - The Supreme Court abandoned nearly two decades of federal
sentencing practice Wednesday, saying judges no longer have to follow
the complex system of guidelines that Congress designed in the 1980s
to make jail terms tougher and more uniform.

In a 5-4 decision, Justice John Paul Stevens, writing for the
majority, found that the federal guidelines ran afoul of the court's
2004 ruling that said the Sixth Amendment requires juries, not judges,
to determine facts that can lengthen sentences.

But rather than eliminate the guidelines or let lower courts work out
how to apply the 2004 ruling within the guidelines, the court, in a
separate 5-4 decision written by Justice Stephen Breyer, prescribed a
sweeping fix of its own.

The guidelines, it said, will be used in an "advisory" manner to help
federal judges come up with "reasonable" sentences.

The court said that solves the constitutional problems with the
guidelines, and preserves Congress' intent in adopting the rules. But
criminal justice experts said Wednesday that the rulings could also
bring more confusion to the process.

"The court, by fiat or constitutional interpretation, has now created
a system of advisory guidelines, so what we have now is essentially
unconstrained judicial sentencing," said Frank Bowman, an Indiana
University law professor and a former federal prosecutor.

More Flexibility

Bowman noted that for years, many federal judges have complained that
the guidelines left them too little flexibility in determining
sentences, and Wednesday's ruling might seem to be what they wanted.

"But I think they'll come to regret what has happened here, because
it's something that's far more likely to provoke a response from the
Department of Justice and Congress that they'll find
unpleasant."

It's unclear, Bowman and others said, whether the rulings offer most
of the 170,000 current federal inmates a chance to appeal their
sentences. But most agree that nearly all inmates are likely to think
they have appeals, inspiring thousands to file. SMART BOX THE

Greater Risks

Assistant Attorney General Christopher Wray, who heads the Justice
Department's criminal division, said government officials were
encouraged that the court didn't strike down the guidelines, but
disappointed that they weren't sustained as mandatory.

"To the extent that the guidelines are now advisory . . . the risk
increases that sentences across the country will become wildly
inconsistent," Wray said.

The rulings spring from two cases the court heard on the first day of
the current term in October. One involves Freddie J. Booker, who was
convicted in Wisconsin 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.

1984 Measure

The guidelines, the result of the 1984 Sentencing Reform Act, were
designed to eliminate wide discrepancies in sentencing, and to make
sure that judges didn't go too easy on criminals. They give judges a
range of sentences for similar crimes, and prescribe longer sentences
for criminal activity that judges find to be beyond what a jury
weighs, called "relevant conduct."

But in spring 2004, the Supreme Court ruled, in Blakely v. Washington,
that state courts were barred by the Sixth Amendment's guarantee of a
jury trial from allowing judges to make those kinds of
determinations.

That ruling caused chaos in federal courts, including the ones
considering sentences for Booker and Fanfan, where it was unclear
whether the ruling applied. Hundreds of sentences were postponed and
several were changed to reflect the ruling.

The Supreme Court took Booker's and Fanfan's cases to provide clarity.
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MAP posted-by: Richard Lake