Pubdate: Thu, 13 Jan 2005
Source: Peoria Journal Star (IL)
Copyright: 2005sPeoria Journal Star
Contact:  http://pjstar.com/
Details: http://www.mapinc.org/media/338
Author: Andy Kravetz

RULING FREES UP LOCAL CASES

Supreme Court Says Judges Not Bound By Sentencing Guidelines

PEORIA - A decision by the U.S. Supreme Court that could drastically change 
the way federal defendants are sentenced was given guarded praise Wednesday 
by several Peoria-area legal experts.

In a highly anticipated decision, the high court held 5-4 that federal 
sentencing guidelines put in place nearly 20 years ago to ensure equivalent 
sentences across the nation were just that, guidelines for federal judges.

Rather than rigidly conforming to the guidelines as they were required to 
in the past, federal judges, such as U.S. District Judges Michael Mihm and 
Joe B. McDade of Peoria, can now use their own discretion when passing 
sentence. Under the Supreme Court's decision, a judge must consider the 
guidelines but can deviate in a reasonable manner from them if they choose.

It also means that some 50 pending cases in Peoria's federal court can now 
go forward with either plea or sentencing hearings.

For federal public defender Richard Parsons, it's a good day for his 
attorneys and clients.

"How many times has a judge said, 'I don't want this. I don't want to 
follow this, but I have no choice'? Now, they aren't going to have that 
easy escape. They will have more latitude in the way the drafters of the 
Constitution had in mind when they made the Supreme Court," he said.

Sixth Amendment

In writing for the majority, Justice John Paul Stevens said making the 
guidelines mandatory violated a defendant's Sixth Amendment right to a 
trial by jury. By scrapping that, the justices reasoned, the rest of the 
system that affects 60,000 defendants each year could be saved.

"Any fact which is necessary to support a sentence exceed-

ing the maximum authorized by the facts established by plea of guilty or a 
jury verdict must be admitted by the defendant or proved to a jury beyond a 
reasonable doubt," the justice wrote.

Before Wednesday, a federal judge would routinely make rulings on the 
amount of drugs a person was tied to and their past "relevant conduct," 
which can include several alleged incidents not proven at trial.

All that matters because federal sentencing ranges are based upon a grid, 
with a person's criminal history on one side and the offense level on the 
other side. Link a person to more drugs, a handgun or tie him to more 
crime, and his offense level can soar, as would his time beyond bars.

A judge had little discretion once those findings were made. Now, those 
enhancements are merely advisory.

U.S. Attorney Jan Paul Miller says he doesn't see the decision as a win for 
either prosecution or defense attorneys. Rather, he thinks, a federal 
sentencing hearing will more closely resemble a sentencing at the Peoria 
County Courthouse, where two sides argue to a judge what a sentence should be.

"What this means is that both sides will have to step up their advocacy at 
sentencing," Miller said. "Here's what I think is going to develop. The 
jumping off point will start at the guidelines where the judge will look at 
the guidelines, and the two sides could argue whether or not to follow the 
guidelines."

Malcolm Young of the Washington D.C.-based The Sentencing Project says some 
will do better, while others will fare worse under the new system.

"Because the right to appeal is so clearly preserved and the guidelines are 
still a reference point for federal courts, the government will find that 
most judges will sentence close to the guideline range."

Guidelines' History

The guidelines were put into place in 1987 under the idea that people 
anywhere would receive the same sentence. Rich or poor, a person with the 
same background and the same criminal offense would get the same sentence.

Now, that's up for debate, Mihm said.

"What this case does basically is gut the very purpose of the guidelines in 
the first place," he said.

Mihm, who was on the federal bench before the guidelines were implemented, 
said he is not satisfied, from an institutional level, that judges need 
this much discretion on a sentence. On a personal level, however, he's 
pleased that he has more say over a sentence.

"I now don't have to go home on a Friday saying, 'I wish I didn't have to 
give out a 160-month sentence when I thought only 100 months was enough,'" 
the judge said.

But Mihm, Miller and Parsons all believe Wednesday's decision isn't the end 
of the debate.

"Based upon all the reasons that led up to the (guidelines being 
implemented), I am absolutely certain this is not end of this," Mihm said.
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