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January 13, 2005 - The Los Angeles Times (CA)

Court Gives Judges Greater Sentencing Flexibility

By David G. Savage, Staff Writer

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Blakely News Archive

WASHINGTON - The Supreme Court ruled Wednesday that judges are free to mete out prison terms that are shorter or longer than those called for under federal sentencing guidelines.

The current sentencing rules can stand, the justices said, as long as they are considered "advisory," not mandatory.

The decision, coming after recent Supreme Court opinions that had cast doubt on the future of the guidelines, was seen as a victory for the judiciary and a setback for lawmakers who would like to limit judges' sentencing authority.

By basically preserving the current system, Wednesday's ruling is not likely to have a broad impact on criminals serving federal terms or those awaiting sentence. It is unclear what effect it will have on future sentencing.

"There are going to be a lot of disappointed criminals in federal prison today," said Kent Scheidegger of the Criminal Justice Legal Foundation, a Sacramento, Calif.-based organization that supports the rights of crime victims.

The guidelines were considered mandatory when they were adopted in 1987 in an effort to ensure that defendants received similar sentences for similar crimes, whether they came before a conservative judge in Dallas or a liberal judge in Boston.

Judges were instructed that certain factors called for a higher or lower prison term. For example, if a drug dealer was shown to have had a huge quantity of drugs and money in his house and been part of a larger operation, sentencing rules called for the judge to add extra years to his prison term. So a dealer facing five years in prison based on the jury's verdict could be sentenced to 25 years or more based on sentencing factors cited by the judge.

But critics said the system gave too much clout to judges and prosecutors.

And until Wednesday, the Supreme Court majority seemed to agree.

In June, a 5-4 majority struck down the sentencing system used in Washington state courts, saying it gave judges too much power. The court said a defendant's right to a jury trial included the right to have the key sentencing factors decided by a jury, not by the judge.

Justices Antonin Scalia, John Paul Stevens, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg formed the majority in that decision. Justice Stephen G. Breyer issued the dissent, warning that the Supreme Court would wreak havoc if it followed the same approach and struck down as unconstitutional the nearly identical federal sentencing system.

More than 60,000 federal criminals are sentenced each year and, in theory, a similar ruling involving the federal bench could have upset all those prison terms.

Instead, a new 5-4 majority -- with Ginsburg this time joining Breyer, Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Sandra Day O'Conner -- on Wednesday found a way to save the federal sentencing system by tweaking it slightly.

"The effect of our (decision) is that the federal sentencing guideline system will remain in existence, not as a mandatory system, but as an advisory system," Breyer wrote; as a Senate Judiciary Committee lawyer, he had helped to craft the federal sentencing rules.

"Without its 'mandatory' provision and related language, the (Sentencing Reform) Act remains consistent with Congress's basic sentencing intent," Breyer wrote.

Ginsburg did not explain her decision in the case.

In his dissent, Scalia called the court's approach "wonderfully ironic: In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing (by judges), it discards the provisions that eliminate discretionary sentencing."

For months, judges, prosecutors and defense lawyers across the United States had been expecting the federal guidelines to be overturned. On Wednesday afternoon, Justice Department prosecutors sounded both relieved and dismayed.

"There is some good and some bad," Assistant Attorney General Christopher Wray, the chief of the criminal division, said. "Although we are pleased that the Supreme Court did not find the federal sentencing guidelines to be unconstitutional, we're disappointed the decision made the guidelines advisory in nature."

Tim Lynch of the libertarian Cato Institute praised the ruling, saying that judges now would have more freedom in sentencing.

"The ... ruling will have the effect of shifting power back to the judiciary. The net effect will be an improvement in the administration of justice because we are more likely to find wisdom and prudence from impartial judges than from partial prosecutors," Lynch said.

States with mandatory sentencing guidelines could overcome the problem presented by the Supreme Court's June ruling by doing what the Supreme Court did Wednesday, simply say the rules are advisory, not mandatory.

In his opinion, Breyer noted that Congress could act to change the system. "The ball lies in Congress' court," he wrote. But it is not clear lawmakers can do much, since the court's opinion Wednesday also said that they may not impose a mandatory system of sentencing rules on judges.

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