WASHINGTON - Judges and legal scholars are working on new federal criminal sentencing guidelines, in anticipation that the Supreme Court will strike down a 17-year-old system that has been challenged as unconstitutional.
Since last June's high court decision raised questions about the legality of the system, 30,000 cases have backed up. The court now is considering whether the guidelines must be replaced because they call for judges, not juries, to consider factors that can add years to prison sentences.
A ruling is likely before the end of 2004, and experts helping a federal panel draft alternatives were generally united in predicting that at least part of the guidelines will be overturned.
The Justice Department weighed in Wednesday with an unofficial endorsement of an alternative -- making slight changes to the current system that would allow harsher penalties for convicted criminals.
The work is being done by the Sentencing Commission, a federal panel that sets guidelines for federal judges who sentence more than 60,000 people each year.
Under the challenged system, juries consider guilt or innocence but judges make decisions that affect prison time, such as the number of victims in a fraud or whether someone used a gun in a crime.
Experts told commission members during public hearings Tuesday and Wednesday that they have a chance to rewrite a flawed system, regardless of the court's ruling.
"Start over," Nancy King, a law professor specializing in sentencing at Vanderbilt University, told the commission.
Judges have been among the harshest critics of the rules. On Tuesday, a Bush-appointed judge sentenced a first-time drug offender to 55 years in prison, which the judge said was more time than rapists, murderers or airline hijackers get. U.S. District Judge Paul Cassell said the sentence wasn't fair, but that he had no choice under the guidelines.
Under the change recommended by the Justice Department, and appearing to enjoy some support on the commission, minimum sentences will not change. However, judges will have flexibility to give longer sentences, up to the maximum defined by Congress. Judges could decide on a long prison sentence, without adding extra time for specific things like gun possession.
"Of all the legislative proposals being discussed as possible solutions, this option adheres most closely to the principles of sentencing reform -- truth-in-sentencing, certainty and fairness in sentences, and the elimination of unwarranted sentencing disparities," Assistant Attorney General Christopher Wray said in testimony before the commission.
Wray said the change, called by some the "topless" plan, would "preserve the traditional roles of judges and juries in criminal cases" and would be easy to get through Congress.
Critics, however, said it would eliminate the point of the guidelines, approved nearly 20 years ago to make sentencing fairer by reducing disparities among punishments handed out by different judges.
"There are judges in my district who will hammer you if you go to trial," criminal defense attorney James Felman of Tampa, Fla., told commissioners. "Sometimes it will depend on what they had for breakfast."
Indiana University law professor Frank Bowman drafted the plan supported by the Justice Department. But Bowman said Wednesday that he considered it only a temporary fix. "I think federal sentencing needs a major overhaul," he said.
Questions were also raised about whether the plan would have constitutional problems before the Supreme Court, and whether it gives prosecutors too much power to plea bargain with defendants worried about getting extremely long sentences.
At issue for the Supreme Court now is whether a defendant's Sixth Amendment right to a jury trial also provides the right to demand that every factor that could lengthen a sentence be put to a jury and proved beyond a reasonable doubt.
Prosecutors have been instructed to change indictments to include aggravating factors in indictments that could add time to prison sentences, to be decided by a jury.
Several legal experts recommended that as a permanent solution, but Wray said that the added work "would impose significant burdens on every phase of the criminal justice system."