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January 14th, 2005 - Democracy Now! (US Web)

Supreme Court Overturns Federal Sentencing Guidelines

Interview with Barry Scheck, President of the National Association of Criminal Defense Lawyers

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Blakely News Archive

The Supreme Court ruled that federal sentencing guidelines put in place two decades ago were unconstitutional because they violated a defendant's Sixth Amendment right to be tried by a jury. The court ruled judges cannot increase sentences beyond the maximum that the jury's findings alone would support.

The decisions -- in a pair of 5-4 rulings -- handed broader discretion to federal judges by telling them to consider the guidelines merely as a suggestion. Previously, the guidelines forced judges to boost sentences based on factors that a jury hadn't ruled on. Now judges are permitted, but not required to do so.

A few thousand defendants who have already been convicted but are appealing their sentences may have a chance to get less prison time, but for tens of thousands of federal prisoners serving time in cases that had reached final resolution, the decision will not apply retroactively.

Barry Scheck is President of the National Association of Criminal Defense Lawyers. He is a professor and director of clinical legal education at Cardozo School of Law where he co-founded the Innocence Project. He is nationally known for litigation work that has set standards for the forensic use of DNA testing

[Rush Transcript]

AMY GOODMAN: Barry Scheck joins us now. He's director -- president of the National Association of Criminal Defense Lawyers, professor and director of the clinical legal education at Cardozo School of Law, where he co-founded the Innocence Project. Welcome to Democracy Now!

BARRY SCHECK: Glad to be here.

AMY GOODMAN: Can you explain exactly what the Supreme Court did?

BARRY SCHECK: Well, actually, your introduction, I thought was excellent. There was a series of cases that had been decided by, you might even call it the Scalia wing of the Supreme Court, it was Justice Scalia, Justice Stevens, interesting, in alliance, that said that judges were finding too many facts that were really essential to raising sentences. So, in one of these cases, you know, the jury would convict an individual of having a certain amount of drugs, and then after the trial, by a preponderance of the evidence, not beyond a reasonable doubt, the judge would make a finding that the defendant possessed far more drugs and sentenced that individual according to the guidelines to a much higher prison term. So, that was the element of the guidelines which the court found was unconstitutional. Now, what many were expecting is that they were going to render a decision that would totally transform the system such that the guidelines themselves would be found completely unconstitutional, and the whole thing would be thrown back to Congress, essentially, you know, to totally revamp the system. And instead, what happened, when a second part of the opinion, Justice Ginsberg switched and joined with Justice Breyer, who was actually the architect of the sentencing guidelines. He literally created them, and put them in place through an entity called the Sentencing Commission. And Breyer just said, "Okay, they're not required anymore. They're merely advisory, but judges have to consult them before they make decisions." And what that probably has done is not changed things for the vast majority of defendants all that much, but it does give judges a lot more flexibility, something that they really wanted, and probably deserved.

JUAN GONZALEZ: Now, Barry, would this have an impact on prisoners in state prisons under state mandatory sentencing laws, or is this just applicable to those in federal prisons?

BARRY SCHECK: Well, there are 11 systems, at least, that had guidelines as a method for sentencing. The first part of the ruling, which says that facts essential to sentences must be decided by juries, and that the guidelines will no longer constitutionally require judges to, you know, follow them, that's definitely going to change. States that have a guideline system that are just like the federal system. There are other states like California that doesn't have exactly a guideline system, but has like a three-tiered system for deciding ranges of sentences but decide which tier you're in, judges can make findings that probably under this decision should be made by a jury. So even a state like California may be affected even though it's technically, I would say, not a guideline system.

AMY GOODMAN: What does this mean, Barry Scheck, for the New York Rockefeller Drug Laws, some of the most draconian laws in the country where judges don't have leeway, sentencing non-violent first-time drug offenders to 15 to life, 20 to life, 25 to life.

BARRY SCHECK: Probably nothing. That, to me, is the real issue. The most unfair aspect of the federal system, the feature which puts so many non-violent offenders in prison, who shouldn't be there, even by the likes of judges like Paul Cassell in Utah, who is a proud member of the Federalist Society, who in a very famous case recently had to sentence a man, Weldon Angelos, to 55 years in jail because of a series of mandatory minimums for a sale of marijuana, where Cassell was saying, you know, this is ridiculous, this punishment doesn't fit the crime at all. It will do nothing for Angelos, it will do nothing for people sentenced under the Rockefeller Drug Laws to these draconian mandatory minimums, and, you know, that's what should be changed. Interestingly, Justice Kennedy, after deciding a case which kept the three strikes laws in place in California, then went to the American Bar Association and gave a very inspiring speech, talking about the unjust effects of these mandatory minimums. The A.B.A. then came out with a report known as the Kennedy Commission report, which calls for rolling back these mandatory minimums, particularly in narcotics cases. Frankly, that's what Congress ought to take up.

JUAN GONZALEZ: I wanted to ask you, you mentioned the three strikes and you're out. Many states have that particular law in place, or variations of it. This decision wouldn't have any impact on increased sentencing requirements for predicate felons?


AMY GOODMAN: We're talking to renowned lawyer, Barry Scheck, known for the Innocence Project and using D.N.A. to exonerate prisoners. Looking at a piece in yesterday's Wall Street Journal that talks about the ruling shifting the balance of power back to the judicial branch temporarily, but Congress dominated by republicans seeking to reassert legislative control by pushing through aggressive mandatory sentencing, the Department of Justice already has begun discussing how to set such rules without violating the Constitution, and it quotes a Florida republican, Tom Feeney, who has pushed for tougher scrutiny of lenient judges, saying the court's decision is "an egregious overreach into Congress's Constitutional power" and called for quick action to insure the spirit of the old guidelines is preserved.

BARRY SCHECK: Right. Well, Congressman Feeny, famously authored something known as the Feeny Amendment, which was a law that required the sentencing commission to keep track of how judges were sentencing people to see if they deviated from the guidelines, which upset Rehnquist and, you know, the entire federal judiciary and many, many lawyers. So, you know, the Wall Street Journal, which Laurie Cohen, in particular, there, has written some terrific articles about mandatory minimums and guidelines over the last year, went to the person who, you know, we know is going to take that position no matter what the Supreme Court did. But when you look at all of the different possibilities that could have come from the United States Supreme Court, this one, without question, is the alternative that will in the final analysis probably change sentencing the least that is best designed to insure uniformity, but not rigidity in terms of how judges approach sentencing. So, I have a feeling that, you know, we can expect Congressman Feeney to have this reaction, but I don't think there's going to be any huge groundswell in Congress to redress this ruling without first seeing how judges react to their newfound independence. So, I don't think that's going to happen, but what I would like to see happen, and we really must make happen, is rolling back these mandatory minimums. That's where the focus ought to be.

JUAN GONZALEZ: Barry, a final question, in terms of the -- the republicans for many years, while they thought that there was a liberal judiciary, wanted to get rid of judicial discretion as much as possible, but given the change and the increasingly conservative appointments that are being made on the judicial bench, is it conceivable that greater judicial discretion would lead to even higher sentences in some of these mandatory minimums?

BARRY SCHECK: Well, that's what's going to happen, I mean, in the sense that you will find in certain jurisdictions, you know, the judges that are more punitive will give higher sentences, and the judges that are less punitive will give lower sentences. But it would be a mistake to view this as a simple left-right proposition. The sentencing guidelines were created by Senator Kennedy and liberals such as Justice Breyer. The sentencing guidelines were struck down by conservatives like Scalia, and are -- and the mandatory minimums are opposed by conservative federalist society judges like Paul Cassell in Utah. So, you cannot in any rigid way predict who is going to take what position when it comes to sentencing. There's a certain diversity here as is reflected, frankly, by the court decisions.

AMY GOODMAN: Barry Scheck, I want to thank you very much for being with us. President of the National Association of Criminal Defense Lawyers, and professor and director of the clinical legal education at Cardozo School of Law, co-founder of the Innocence Project.

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