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July 14, 2004 - The Associated Press (US)

Judges Differ On Supreme Court Sentencing Case

By Anne Gearan, AP Writer

WASHINGTON -- In the three weeks since a Supreme Court ruling cast a constitutional shadow over federal sentencing rules, four federal trial judges have interpreted the high court ruling in four different ways. And that's just in Utah.

"The criminal docket is now operating under tremendous uncertainty," U.S. District Judge Paul Cassell told Congress on Tuesday.

Cassell is one of those four Utah judges, and the first to declare that the bombshell high court ruling makes the complex architecture of federal sentencing guidelines unconstitutional.

Despite the confusion, Cassell and other federal judges urged skeptical senators not to leap to write new sentencing rules. Let courts, including the Supreme Court, sort things out first, the judges said.

"The sky is not falling," U.S. District Judge William Sessions of Vermont said. "We are not in the midst of a crisis."

Nonetheless, Judiciary Committee Chairman Orrin Hatch, R-Utah, said he is considering a "temporary fix." The legislation might tinker with the guidelines to allow judges to operate much as they do now as they await final word from the Supreme Court.

The turmoil extends far beyond Utah, with a welter of conflicting lower court rulings and the potential to affect federal criminal sentences for drug dealing to money laundering to bank robbery and more.

"We have to explore what will happen to the thousands of cases that are now pending, as well as the hundreds of thousands of cases that were resolved previously," said Sen. Patrick Leahy of Vermont, the senior Democrat on the Judiciary Committee.

The Supreme Court's 5-4 ruling last month said that juries, not judges, must consider any factor that could lengthen a defendant's sentence beyond the maximum set out in state sentencing guidelines. To do otherwise would violate the 6th Amendment right to a jury trial, Justice Antonin Scalia wrote for the majority.

Since then, numerous federal trial judges have concluded that the ruling in Blakely v. Washington also applies to them. The federal system is similar to the Washington state rules at issue in the case, although Scalia noted in a footnote that his ruling did not address that system.

In at least three instances, federal judges rescinded a sentence that appeared unconstitutional considering the high court's new rules. Others have delayed sentencings.

The Justice Department maintains that the Blakely ruling does not affect the federal system but has told federal prosecutors to change the way they draft indictments and plea bargains. A July 2 memo from Deputy Attorney General James B. Comey said prosecutors should "safeguard against the possibility of a changed legal landscape."

Two federal appeals courts, the last stop before the Supreme Court, have reached apparently contradictory conclusions about the ruling's effect on federal sentencing rules, and a third appeals court took the rare step of formally asking the Supreme Court to revisit the issue.

The 2nd U.S. Circuit Court of Appeals in New York posed three questions to the Supreme Court on Tuesday, asking the justices to "adjudicate promptly the threshold issue of whether Blakely applies to the federal sentencing guidelines."

There was no immediate answer from the high court, which is on its summer hiatus, and no deadline for the justices to choose whether they will accept the appeals court's challenge.

The guidelines, a decade in the making on Capitol Hill and now in effect for nearly two decades, are not really guidelines at all. The complicated, points-based system gives judges a limited range of sentences to choose from in each case, and gives them only very small leeway to impose harsher or more lenient punishment.

The system does, however, make judges responsible for determining some facts that can lengthen a prison term, such as whether a firearm was used in a crime or the amount of drugs seized in a raid.

The guidelines were meant to level disparities among punishments given by different judges for the same crime and to reduce the effect of racial and other biases.

Judges often dislike the guidelines but nonetheless have come to accept the system, U.S. District Judge Lawrence Piersol of South Dakota told the Senate Judiciary panel. Congress should consult judges before making changes now, he said.

© Copyright 2004 Associated Press.

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