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August 2, 2004 - The Associated Press (US)

Supreme Court to Settle Sentencing Rules

By Anne Gearan, AP Writer

WASHINGTON (AP) - The Supreme Court agreed Monday to try to settle whether long-established rules for sentencing criminals in federal court are constitutional, a question the justices raised with a ruling in June that placed thousands of criminal cases in limbo.

The justices threw federal courthouses into disarray by overturning a state sentencing system that is similar to the one used by federal judges. In the case from Washington state, the high court said the rules gave judges too much sway in determining the length of prison terms.

In a rare summer announcement, the justices said they will hear two cases about the sentencing dilemma on their first day back to work in October.

In the six weeks since the high court ruling, some federal judges have concluded that it rendered the federal sentencing system unconstitutional. Other judges have continued using the old sentencing system. In one Utah courthouse, four different federal judges have taken four different views about whether the system can stand.

"Right now it's just a mess. People don't know what to do,'' said Roscoe Howard, former U.S. attorney for the District of Columbia and now a Washington lawyer.

With federal judges handing out about 1,200 criminal sentences a week, the number of cases that may be affected by the uncertainty is staggering, the Bush administration's top Supreme Court lawyer argued in court filings.

"The number of federal cases affected by the questions presented in these cases will increase daily until this court resolves those questions,'' acting Solicitor General Paul Clement argued in asking the high court to move quickly.

The administration defends the federal system, set up by Congress in 1987 as a way to make sentencing more uniform and fair. Judges are given a range of possible sentences for each crime.

Although judges frequently complain that the guideline system leaves them too little flexibility, the rules also rely on judges to make many factual decisions that can affect a sentence, such as the amount of drugs involved in a crime, or whether a gun was used.

The Supreme Court's 5-4 ruling in Blakely v. Washington held that juries must decide any matter that can lengthen a sentence beyond the maximum set out in state sentencing guidelines unless the defendant admits to it.

To do otherwise violates a defendant's Sixth Amendment right to a jury trial, the court majority said.

The high court long ago ruled the federal guideline system constitutional but has since begun a re-examination of the role of judges and juries in determining facts.

A ruling four years ago, little noticed at the time, overturned state sentencing rules in New Jersey that allowed a judge to lengthen a criminal sentence based on facts never presented to a jury.

The court said then, and has repeated in other cases since, that the Constitution's guarantee of a jury trial means that judges alone cannot do the work of juries.

It has been unclear whether the federal sentencing rules would survive, but the issue did not come to a head until the Supreme Court ruled in the Washington case.

The high court said nothing Monday about the urgency of the sentencing issue, but the choice to hear the cases so soon is an indication that the court is well aware of the turmoil its ruling caused.

"Look, they're just like the rest of us,'' Howard said. "They read the papers, and they don't like to be criticized.''

Some judges held off sentencing defendants for days or weeks, and some have reluctantly handed out sentences that were far shorter than they would have issued before the Blakely ruling. Federal prosecutors, following advice from the Justice Department, have started drafting their indictments differently or asking judges to consider two separate sentences - one to be used should the sentencing structure be found constitutional, and one if it were scrapped.

Even justices who dissented in the Blakely case may been surprised by the ruling's immediate and profound consequences.

Justice Sandra Day O'Connor, who wrote a hotly worded dissent in Blakely, told an audience of federal judges last month that the aftermath "looks like a No. 10 earthquake.''

The new cases are United States v. Booker, 04-104 and United States v. Fanfan, 04-105.

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