WASHINGTON - The Supreme Court on Wednesday transformed federal criminal sentencing by restoring to judges much of the discretion that Congress took away 21 years ago when it put sentencing guidelines in place and told judges to follow them.
The guidelines, intended to make sentences more uniform, should be treated as merely advisory to cure a constitutional deficiency in the system, the court held in an unusual two-part decision produced by two coalitions of justices.
In the first part, five justices declared that the current guidelines system violated defendants' rights to trial by jury by giving judges the power to make factual findings that increased sentences beyond the maximum that the jury's findings alone would support.
That portion of the opinion had been widely anticipated, growing directly out of a similar conclusion the same five justices - John Paul Stevens, Antonin Scalia, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg - reached last June in invalidating the sentencing guidelines system in the state of Washington.
The real question hanging over the case, which the court granted on an expedited basis over the summer and heard in October on the opening day of its new term, was how the justices would solve the problem.
So it was the second part of the decision - the remedy - that was the surprise and that will shape the continuing debate over sentencing policy. With Justice Ginsburg joining the four justices who dissented from the first part - Stephen G. Breyer, Sandra Day O'Connor, Anthony M. Kennedy and Chief Justice William H. Rehnquist - a separate coalition said the problem could be fixed if the guidelines were treated as discretionary rather than mandatory.
From now on, Justice Breyer said, writing for the majority in this portion of the decision, judges "must consult" the guidelines and "take them into account" in imposing sentences. But at the end of the day the guidelines will be advisory only, with sentences to be reviewed on appeal for "reasonableness." Lawmakers and legal experts predicted Wednesday that the court's decision would renew the struggle between Congress and the judiciary for control over sentencing. On Capitol Hill, some members of Congress made it clear that they were bracing for a fight over how much discretion federal judges should have.
The decision leaves many unanswered questions and much work for the federal courts of appeals. It is in the appeals courts that its real meaning will emerge, as those courts handle sentencing appeals and build a body of law evaluating the "reasonableness" of sentences.
Thousands of federal defendants who have been sentenced since the decision in the Washington State case have effectively been in limbo awaiting clarification of the situation. People whose sentences are still on appeal will be immediately affected by the ruling.
The guidelines provide judges with a grid with the offense for which the defendant has been convicted on one axis and the offender's history and other details on another. The grid gives the judges a range of possible sentences and the system instructs them to go above that range if they make certain factual findings. It was this mandatory aspect of the system that was at issue in the case.
The remedy devised by Justice Breyer's five-member majority had not been proposed by any party, although the Justice Department suggested a form of advisory guidelines as a fallback position to its defense of the system's constitutionality. Christopher A. Wray, an assistant attorney general, said Wednesday that the department was relieved to see the guidelines remain in place but concerned that sentencing disparities might increase now that they were no longer mandatory.
The decision, United States v. Booker, No. 04-104, had its roots in a series of intensely disputed sentencing rulings that began with Apprendi v. New Jersey in 2000. In a series of cases, the court has held that given the Sixth Amendment right to trial by jury, judges cannot impose sentences beyond the "prescribed statutory maximum" unless the facts supporting such an increase are found by a jury beyond a reasonable doubt.
Under that analysis, the constitutional cloud over federal criminal sentencing derived from the mandatory nature of the guidelines, which instruct judges to consider various facts, like a defendant's leadership role in a criminal enterprise, and to increase sentences beyond the guidelines accordingly. The court made it clear in the Washington State case last June that the top of an ordinary guideline range was the equivalent of a statutory maximum.
But if judges simply exercise their traditional sentencing discretion, advised by guidelines but not bound by them, the defendant's Sixth Amendment right is not implicated, a conclusion on which all nine justices agreed on Wednesday. In other words, as judges' flexibility grows, defendants' Sixth Amendment protections shrink.
The dispute on the court was not over that paradoxical proposition, but rather over how Congress would have chosen to proceed if it had known of the Sixth Amendment issue when it put the guidelines system in place in the Sentencing Reform Act of 1984. When the Supreme Court finds a statute unconstitutional, the court's next step is to see whether there is a solution consistent with the legislators' original intent.
Dissenting from the remedy portion of the decision, Justice Stevens, with Justices Souter, Scalia and Thomas, said in effect that the last thing Congress would have done would be to give judges back the power that the guidelines were intended to constrain.
Rather, the dissenters said, if the problem was a violation of the right to trial by jury, the solution also lay with the jury: to require prosecutors to make indictments more specific and to present to the jury any factor that would increase a sentence beyond the ordinary range. Justice Stevens said that in avoiding this solution and instead changing the nature of the guidelines themselves, it was "clear that the court's creative remedy is an exercise of legislative, rather than judicial, power," one that "violates the tradition of judicial restraint."
Justice Breyer insisted, however, that his was the solution that "would deviate less radically from Congress's intended system." He said that to make jury findings the basis for sentencing would shift too much power to prosecutors and "undermine the sentencing statute's basic aim of ensuring similar sentences for those who have committed similar crimes in similar ways."
Justice Breyer spoke with some authority; as chief counsel of the Senate Judiciary Committee in the 1970's, he played a leading role in the passage of the Sentencing Reform Act and later was a member of the United States Sentencing Commission. He had been on the losing side of the Apprendi decision and the subsequent rulings.
Though the outcome Wednesday was not one he would have wished - he argued in dissent from the first part of the decision that guidelines were different than statutes and that the analysis of the earlier rulings should not apply - the decision was in some ways a personal triumph. The Sentencing Commission remains intact and the guidelines are still on the books, with the presumption that most judges will follow them most of the time.
The mystery in the case was Justice Ginsburg, who joined the Stevens group, as she consistently has, in applying the Sixth Amendment to the guidelines. She then provided Justice Breyer with his fifth vote to preserve the system's architecture. She did not write a separate opinion to explain herself. The court took considerably longer on the case than had been expected. Many people thought a decision would be out by Thanksgiving, and it is possible that Justice Ginsburg's vote, and therefore the outcome, was in play until late in the process.
The portion of Justice Breyer's opinion that dealt with appeals had the effect of overturning a 2003 Congressional amendment to the sentencing law that instructed appeals courts to give no deference to the decisions of trial judges when reviewing sentences shorter than those called for by the guidelines. That provision, known as the Feeney Amendment for its sponsor, Representative Tom Feeney, Republican of Florida, was an expression of Congressional impatience with the judiciary and in turn angered many federal judges.
It was not clear Wednesday whether Freddie J. Booker and Ducan Fanfan, the two defendants in the case before the court, would benefit from the ruling. Mr. Booker, convicted in Federal District Court in Madison, Wis., of possessing 50 grams of cocaine base, received an extra 8 years on a 22-year sentence when the judge found that he had distributed 10 times that amount.
After Mr. Fanfan was found guilty by a jury in Portland, Me., of distributing 500 grams of cocaine, the judge refused the government's request to increase the sentence, predicting that the Supreme Court would soon find the guidelines unconstitutional. Both defendants will now go back to district court for possible resentencing, with an appeal available to both sides.