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January 18, 2005 - The New York Times (NY)

Judges' New Leeway In Passing Sentence May Change Little

By Adam Liptak

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Blakely News Archive

Allowing federal judges great leeway in sentencing criminals does not have to breed chaos, say judges and sentencing specialists in states that already have such systems.

When the Supreme Court said last week that federal sentencing guidelines were merely advisory, many prosecutors and lawmakers predicted that federal judges would start issuing wildly inconsistent sentences based on little more than sentiment and whim. But the few states that already use similar systems have produced remarkable conformity.

"There is a sense out there that an advisory sentencing guideline system can't work," said Richard Kern, the director of the Virginia Criminal Sentencing Commission, which oversees the system that most resembles the way federal sentences will now be handed down. "But our guidelines' compliance rate is higher than the federal system, which had a mandatory system."

In Virginia, judges follow the state's advisory guidelines 81 percent of the time, Mr. Kern said. In the District of Columbia, which converted to an advisory system for its local courts this summer, judges have been found to follow the guidelines 87 percent of the time.

"For defendants facing sentences under state advisory guideline systems," said Carmen Hernandez, a vice president of the National Association of Criminal Defense Lawyers, "85 percent of the sentences imposed in those systems end up being the sentences that would have been imposed under the guidelines."

Under the federal system that was considered mandatory, judges sentenced defendants within the guidelines only about 65 percent of the time.

Legal scholars, judges and sentencing specialists caution that there are substantial differences between the state systems and the new federal one, and that compliance by federal judges, who have increasingly chafed under the mandatory guidelines, can be expected to decline. But they add that the experience in the states may suggest that the change in the federal system will be evolutionary rather than radical.

In the past few days, federal judges have indicated that the guidelines will retain considerable force. "In all but the most unusual cases," Paul G. Cassell, a federal judge in Salt Lake City, wrote in a decision on Thursday, "the appropriate sentence will be the guidelines sentence."

William G. Young, the chief judge of the Federal District Court in Boston, said that he expected only minor changes in sentencing practices.

Among the states, Virginia appears to be an instructive model, said Daniel F. Wilhelm, the director of the state sentencing and corrections program of the Vera Institute of Justice, a nonprofit research group based in New York.

The system that the Supreme Court created for federal courts is very similar to what Virginia created 10 years ago, Mr. Wilhelm said Thursday. "What Virginia suggests is that you can balance concerns of public safety along with a sentencing guideline system that trusts judges with discretion," he said. "And there would be very few people who would accuse Virginia of not being a tough-on-crime state."

Other states with advisory guidelines have had less success in persuading judges to apply them.

"Since they were voluntary, people didn't necessarily look at them," Judge Michael A. Wolff of the Missouri Supreme Court, the chairman of the state's Sentencing Advisory Commission, said of his state's guidelines, which were revised in June to try to get judges to use them more often. "The compliance rate was poor, I think less than half."

In general, though, the state systems say they are succeeding.

Michael Connelly, the executive director of the Wisconsin Sentencing Commission, said, "It's not necessarily the case that disparity and noncompliance are inevitable in an advisory system."

In 1984, when Congress enacted the guideline system, it rejected an advisory system, relying in part on testimony from Scott Harshbarger, then a district attorney in Massachusetts.

"Advisory and voluntary guidelines were not working," Mr. Harshbarger, now in private practice, said in an interview on Friday. "You have to have some measure of uniformity, consistency and predictability. A system of voluntary guidelines is not good for public safety or confidence in the justice system."

Some scholars say much has changed in the state courts in the intervening years.

"Judges now get in line a lot more, for two reasons," said Douglas A. Berman, a law professor at Ohio State University. "One is, they're scared about having the federal system. Another reason is that, in the 1970's, with the focus on rehabilitation, the pervasive philosophy was to view every case individually. In the last 25 years, the thinking has changed, as we focus much more on the crime than the defendant."

Federal judges had been under criticism, even under the old system, as varying too much in sentencing. Over all, they sentenced 65 percent of defendants within the guidelines in 2002, the most recent year for which data were available. In 17 percent of cases, they issued lesser sentences for other reasons, generally involving a defendant's personal circumstances.

And in another 17 percent of cases, they showed leniency to defendants who cooperated with prosecutors, which most law enforcement officials say they find acceptable. Judges imposed harsher sentences than the guidelines would have required about 1 percent of the time.

Departures from the federal guidelines depended on the type of crime and where it took place. People convicted of antitrust were sentenced within the guidelines 31 percent of the time; those convicted of possessing drugs, 95 percent. In Arizona, 31 percent of all sentences were within the guidelines; in southern Virginia, 89 percent were.

In some ways, the state systems can provide only limited guidance about how the new federal system is likely to operate. State judges, who are usually elected, face different pressures and incentives than do federal judges, who have life tenure.

"In Virginia, judges are elected by the state Legislature," said Kevin R. Reitz, a law professor at the University of Colorado and an expert on state sentencing practices. "That makes them a little fearful of ignoring the guidelines. Reckless deviation from the sentencing guidelines may not be good for their careers."

State systems also have budget pressures that are largely absent from the federal system.

"In the overall federal budget, the total corrections budget is well below 1 percent," Professor Reitz said. "In the state systems, it might be more on the order of 15 or 20 percent. In the vast majority of states that have sentencing guidelines, the guidelines were designed in the first place to respond to budgetary pressures."

Judges in those states, said Professor Berman of Ohio State, "get in political trouble with their legislators, not their voters, if they sentence too long."

To monitor compliance, the new federal system calls for an active role for appeals courts, creating an important control absent from most state systems. "In Virginia," Mr. Wilhelm said, "appellate review is virtually nonexistent."

The Supreme Court decision requires federal appeals court judges to determine whether sentences are reasonable. Still, Professor Reitz concluded that the differences between state systems and the new federal system may outweigh the similarities.

"Geography and life tenure and the strong tradition of judicial independence on the federal bench and the fact that the federal sentencing guidelines were not created with judicial preferences in mind all suggest," he said, "that an advisory system is going to lead to very disparate results from district to district and from judge to judge."

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