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January 14, 2005 - ABA Journal E-Report (US)

All Sides Wary Of Sentencing Ruling

Changes in Store as Supreme Court Revokes Mandatory Guidelines

By John Gibeaut, American Bar Association

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Blakely News Archive

Prosecutors likely won't be the only ones on shaky ground after this week's U.S. Supreme Court decision that effectively gutted the federal sentencing guidelines by relegating them to an advisory role in meting out criminal punishment. The earth also could be moving beneath defendants and judges, sentencing experts predict.

The court Wednesday released 124 pages of long-anticipated opinions in the consolidated cases of United States v. Booker, No. 04-104, and United States v. Fanfan, No. 104-105. Included were two separate 5-4 majority opinions. As had been expected, one opinion, written by Justice John Paul Stevens, holds that federal sentencing based on facts determined by judges alone violates the Sixth Amendment's guarantee of a jury trial. Joining him were Justices Ruth Bader Ginsburg, Antonin Scalia, David H. Souter and Clarence Thomas.

The second opinion, by Justice Stephen G. Breyer, immediately raised a commotion throughout the criminal justice system because it reduced the guidelines to an advisory capacity. That presumably leaves judges free to dish out any sentences they desire above or below what had been practically mandatory recommendations, so long as they fall within the range set by statute. Statutory minimum and maximum sentences typically exceeded guideline recommendations at both ends.

Joining Breyer's opinion were Chief Justice William H. Rehnquist, Justices Anthony M. Kennedy, Sandra Day O'Connor and -- curiously -- Ginsburg, who wrote no opinion explaining her changing position.

"This is actually a bittersweet day for criminal defendants," says Jon M. Sands of the Phoenix federal public defender's office. On one hand, Sands says, he welcomes the Sixth Amendment holding from the Stevens majority, because it reaffirms the court's position that only juries can determine facts that increase sentences.

On the other hand, he says, the guidelines' demise leaves the decision up to one person -- the trial judge -- and raises the potential for wildly varying punishments, which the guidelines were supposed to eliminate when Congress included them in the 1984 Sentencing Reform Act.

Ironically, the decision may give judges their greatest sentencing power ever. That's because the Breyer opinion not only demotes the guidelines to advisory status, but because the 1984 act eliminated parole, which was deemed unnecessary with the definite sentencing the new system was supposed to provide. The U.S. Parole Commission typically would "smooth out judge-to-judge disparity" in setting inmate release dates, says Frank Bowman, a law professor at Indiana University-Indianapolis and a former federal prosecutor.

Paradoxically, the Breyer remedy also appears to thwart a course charted in earlier Supreme Court decisions in which members of Wednesday's Stevens majority sought to limit judicial power by including jurors in fact-finding for sentencing purposes.

"So what you have is essentially unconstrained judicial sentencing," Bowman says.

That initially may sound like good news for judges, who have reacted bitterly to recent congressional attempts to rein them in. One such statute included the Feeney Amendment, which eliminated nearly all avenues to reduce sentences from those recommended by the guidelines.

But unfettered judicial discretion likely will not sit well with either Congress or the Justice Department, Bowman predicts. "I rather suspect that the federal judiciary may come to regret what has happened after Congress and the DOJ step in," he says.

The decision also could wreak havoc in the short run as perhaps hundreds of thousands of defendants jam the courts with motions to overturn their sentences.

"I imagine every defendant sitting in prison today will file something," says Amy Baron-Evans, a defense lawyer who co-chairs a practitioners advisory group to the U.S. Sentencing Commission, which sets the guidelines.

The U.S. Judicial Conference had no immediate comment. The federal courts' policy-making body in 2003 had asked Congress to repeal the Feeney Amendment, which severely curtailed their power to depart downward from the guidelines.

Prosecutors already had dreaded the outcome in Booker, because it robs them of their ability to use unproven crimes beyond those reflected in jury verdicts to persuade judges to hammer defendants at sentencing. In reaction to Blakely v. Washington, No. 02-1632, a 2004 Supreme Court decision that killed a state guideline system, federal prosecutors last summer began including in indictments factors such as background and character for jurors to consider solely for sentencing. Those factors went beyond the elements of the basic charges against defendants.

Stripping away predictable punishment under the guidelines and leaving the show to judges also reduces prosecutors' leverage to pressure defendants into pleading guilty and cooperating with the government, Bowman says. That alone may push Justice to seek legislation to fix Breyer's remedy, he says, adding, "DOJ's going to hate this." Department officials didn't immediately offer specifics on their plans.

The Stevens holding in Booker represents the latest step in a series of cases in which a divided court has consistently held that, with the exception of prior criminal records, juries must make the factual determinations that increase sentences beyond the maximum allowed by statute, and now, guidelines. The opinion reaffirms the court's holding in Apprendi v. New Jersey, 530 U.S. 466 (2000). There, a defendant faced a 10-year maximum for shooting into a black family's home. But the judge increased the sentence to 12 years under a state law that allowed the hike in instances where judges determined on their own that racial prejudice motivated defendants.

The court agreed to hear Booker in the wake of the uproar caused last year by Blakely, which struck down a Washington law that allowed a judge to increase the sentence of a man who admitted terrorizing and kidnapping his wife. The 90-month sentence was more than three years longer than the 53 months recommended by the state's guidelines.

The federal guidelines' death came in the cases of convicted drug dealers Freddie J. Booker and Ducan Fanfan. A Wisconsin jury convicted Booker in 2003 of possessing and distributing crack cocaine. Police seized 92.5 grams of crack from Booker when he was arrested. The drug quantity, combined with Booker's 23 prior convictions, would have gotten him a little less than 22 years under the intricate mathematical formula the guidelines use to recommend sentences.

But at sentencing, the trial judge added another 20 ounces of cocaine that Booker told detectives he had sold in the months before his arrest. On top of that, the judge determined that Booker obstructed justice by perjuring himself at trial. Though Booker never was charged with those offenses, the judge increased his sentence to 30 years.

A Maine jury convicted Fanfan in 2003 of conspiring to distribute at least 500 grams of powdered cocaine. At sentencing, the government presented testimony that Fanfan also dealt extensively in crack, which carries tougher penalties. The court concluded that the additional evidence warranted a 16-year sentence under the guidelines. But after considering Blakely, the judge gave Fanfan six and a half years based on the amount of cocaine reflected in the jury's verdict.

Stevens wrote that the court was forced to move to protect the Sixth Amendment jury trial right in reaction to a nearly 20-year legislative trend toward heavier sentences:

"It became the judge, not the jury, that determined the upper limits of sentencing, and the facts determined were not required to be raised before trial or proved by more than a preponderance," Stevens observed. "As the enhancements became greater, the jury's finding of the underlying crime became less significant. The new sentencing practice forced the [Supreme] Court to address the question how the right of jury trial could be preserved in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime."

While Stevens would have preferred a remedy incorporating the jury trial right into the existing system, the Breyer majority would have none of it. Instead, it chose to make the guidelines advisory, using an argument that a rewrite would conflict with congressional intent to leave sentencing fact-finding to judges.

"The district courts, while not bound to apply the guidelines, must consult those guidelines and take them into account when sentencing," Breyer wrote. He expressed confidence that appeals courts "would tend to iron out sentencing differences."

But Breyer also recognized that Booker could turn into a dead letter. "Ours, of course, is not the last word," he wrote. "The ball now lies in Congress' court. The national legislature is equipped to devise and install, long-term, the sentencing system compatible with the Constitution, that Congress judges best for the federal system of justice."

That likely will occur sooner, rather than later. "I think Justice Breyer probably said it best," echoes one Republican staffer for the Senate Judiciary Committee. "This is not the last word."

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