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October 5, 2004 - The New York Times

Justices Show Inclination to Scrap Sentencing Rules

By Linda Greenhouse

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Blakely News Archive

WASHINGTON - By the time the first day of the new Supreme Court term ended on Monday, there seemed little doubt that criminal sentencing in the United States was about to change. But what form the change might take, how drastic it might be, and whether defendants or prosecutors would benefit the most remained very much open to question as the court heard arguments on the constitutionality of federal sentencing guidelines that have been in effect for 17 years.

A series of Supreme Court decisions, culminating in June with the invalidation of the sentencing guidelines in the Washington State, established the principle that juries, and not judges, must rule on the facts that are the building blocks of a criminal sentence.

In the June case, Blakely v. Washington, the court said that the Sixth Amendment right to trial by jury requires that any fact, like the quantity of drugs in a narcotics case, that leads to a sentence greater than the maximum the defendant could otherwise receive must be proven to a jury beyond a reasonable doubt.

Most of the justices on Monday appeared prepared to apply that decision to the federal guidelines, despite the vigorous effort of Paul D. Clement, the acting solicitor general, to persuade the court otherwise. The court's concern, Mr. Clement said, has been not to allow judges to set sentences beyond the "statutory maximum" for a crime. While the Washington guidelines were part of state law, the federal guidelines came from the United States Sentencing Commission, which does not enact statutes and should not raise the same concern, he said.

Justice David H. Souter rejected the argument. "The defendant in the courtroom is going to suffer the same effect, whether it's a rule, a guideline, or a statute," he said. "Why should that make any difference under the Sixth Amendment?"

And Justice Ruth Bader Ginsburg told the government lawyer, "The distinction you're making really doesn't stand up."

Those two justices' responses were significant because both were part of the 5-to-4 majority in the Blakely decision and have been seen by some court-watchers as the most likely of the five to try to draw a boundary between that case and the federal guidelines. But they showed no inclination to do so.

The other members of the majority were Justices Antonin Scalia, who wrote the opinion; John Paul Stevens, who wrote the opinion in Apprendi v. New Jersey that started the court on this path four years ago; and Clarence Thomas.

The court spent most of the argument debating what might happen if the guidelines in their current form could no longer be used. There appeared to be no consensus.

The government's position is that if the guidelines can no longer be applied as binding sentencing rules, judges should be able to use them in an advisory way and have the discretion to impose any sentence within the range that Congress has set for the crime. Justice Stephen G. Breyer, for one, appeared to find that alternative attractive. What would be wrong, Justice Breyer asked, with substituting the word "may" for the word "shall" in the law that directs judges to use the guidelines?

There would be nothing wrong with that, Mr. Clement replied.

Justice Scalia interjected, "Could it be that 'shall' does not mean 'may'?''

Justice Breyer is the court's strongest advocate for the guidelines. He played a leading role in their development as a Senate staff member and later as a member of the sentencing commission. In contrast to his usual air of wry good cheer, Justice Breyer appeared weary and somewhat forlorn as the argument progressed.

To J. Christopher Kelly, a defense lawyer arguing on behalf of Freddie J. Booker, one of the two defendants before the court, Justice Breyer observed that Congress's objective in establishing the guidelines system was uniformity in sentencing. "I think it was a noble objective, whether or not it was achieved," Justice Breyer said. "Are you saying, 'Sorry, there's just no way to do it?' ''

The result, he suggested, would be that one cellmate would serve a day in prison and the other cellmate 50 years when their "real conduct was the same."

Mr. Kelly replied, "The real conduct can still be proved to a jury." He and Rosemary Scapicchio, representing the other defendant, Ducan Fanfan, both said that under current sentencing practice, the government "proves the easiest charge and saves the heart of the case for sentencing," as Mr. Kelly put it.

In his client's case, United States v. Booker, No. 04-104, the jury convicted Mr. Booker of possessing and intending to distribute at least 50 grams of cocaine base. For that crime, the guidelines recommended a sentence of 20 to just over 22 years. But the judge sentenced him to 30 years by finding that he had distributed 10 times that amount of cocaine in the weeks before his arrest.

Mr. Booker had been neither charged nor convicted of distributing that amount, but the manual on sentencing guidelines instructs judges to base the sentence on all acts "that were part of the same course of conduct or common scheme or plan as the offense of conviction."

The federal appeals court in Chicago found that this additional sentence violated the principle established in the Blakely decision, and the government appealed to the Supreme Court.

In the second case, United States v. Fanfan, No. 04-105, a jury found the defendant guilty of conspiring to possess and distribute at least 500 grams of cocaine. Four days after the Supreme Court issued the Blakely ruling, a judge sentenced Mr. Fanfan to six and a half years in prison, the maximum guidelines sentence for the offense. Prosecutors had sought about 15 to 20 years, in light of the evidence it presented at sentencing that the defendant had been a ringleader of the conspiracy.

The judge, D. Brock Hornby of Federal District Court in Maine, said the federal guidelines were "exactly comparable to the Washington state scheme in all respects material to the Blakely decision."

Mr. Clement referred at one point Monday to "carnage and wreckage" in the federal criminal justice system, and began his argument by noting that federal courts impose 1,200 criminal sentences every week. All the justices did not share the government's sense of dread. Justice Stevens noted several times that 97 percent of federal criminal cases are settled by plea bargains, with only 3 percent going to trial. He said he was "not persuaded" that a major problem loomed for the government.

In addition to making the guidelines advisory for judges, another option discussed was keeping the guidelines but having the jury, rather than the judge, make the factual findings on which the sentence depends. That would require the government to specify those facts - such as the quantity of drugs, or the degree of the defendant's involvement in a conspiracy - and to prove them to the jury beyond a reasonable doubt.

Mr. Clement dismissed this idea as the "Blakely-ization of the guidelines," which he said would amount to "judicial law-making." Guidelines that were "clearly designed for judicial fact-finding" were not suited for use by the jury, he said.

At one point, Justice Sandra Day O'Connor, one of the strongest dissenters from the Blakely decision, seemed to reach a moment of frustration and resignation. "Maybe we should just leave it to Congress," she said.

Copyright 2004 The New York Times Company

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