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June 25, 2004 - The New York Times (NY)

Justices, In 5-4 Vote, Raise Doubts On Sentencing Rules

By Linda Greenhouse

WASHINGTON, June 24 -- The Supreme Court invalidated the criminal sentencing system of the State of Washington on Thursday in a decision that also cast doubt on whether the 20-year-old federal sentencing guidelines can survive a constitutional challenge.

Bitterly split in a 5-to-4 decision that cut across the court's usual ideological lines, the justices continued a profound five-year-long debate over the respective roles of judges and juries in criminal sentencing. In this case, they ratcheted that debate up to a new level that left the federal guidelines in constitutional limbo and cast doubt on the validity of thousands of sentences, at both the state and federal level.

Sentencing in about a dozen states is likely to be affected by the ruling.

In a separate decision, the court rejected the retroactive application of a 2002 death penalty ruling, placing as many as 100 inmates in five states back on death row.

In the Washington guidelines case, Justice Antonin Scalia's majority opinion held that the Washington system, permitting judges to make findings that increase a convicted defendant's sentence beyond the ordinary range for the crime, violated the right to trial by jury protected by the Sixth Amendment. The facts supporting increased sentences must be found by a jury beyond a reasonable doubt, Justice Scalia said.

While the federal system is considerably more complex, it places judges in much the same role, empowering them to make the factual findings that determine the ultimate sentence and requiring nothing more to support those findings than a "preponderance of the evidence." That is the legal system's lowest standard of proof, while "beyond a reasonable doubt" is its highest.

While Justice Scalia said that "the federal guidelines are not before us, and we express no opinion on them," that statement appeared to be simply marking time.

"There is nothing to suggest that the federal guidelines would get different treatment," Stephanos Bibas, a former federal prosecutor who is now a sentencing expert at the University of Iowa law school, said in an interview.

In a dissenting opinion, Justice Sandra Day O'Connor depicted the federal guidelines as being now in peril. "What I have feared most has now come to pass," Justice O'Connor said, referring to her own dissenting positions in the recent precedents that brought the court to this moment. "Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy," she added.

The vote in this case, Blakely v. Washington, No. 02-1632, was the same as the vote in Apprendi v. New Jersey, the case the court decided almost precisely four years ago that began the constitutional revolution in criminal sentencing that is now playing out.

As it was then, the majority on Thursday was composed of Justices John Paul Stevens, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg, in addition to Justice Scalia. The dissenters, in addition to Justice O'Connor, were Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Stephen G. Breyer, the latter an author of the federal system when he worked for the Senate Judiciary Committee as its chief counsel in the late 1970's. As a federal appeals court judge, he then served on the United States Sentencing Commission.

In the Apprendi case, the court invalidated New Jersey's hate-crime statute, which increased the sentence for an ordinary crime if a judge found that the act was motivated by bias. Other than a previous conviction, the Supreme Court ruled then, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt."

As Justice Scalia elaborated on Thursday, the purpose of that rule was "to give intelligible content to the right of jury trial," which he said the Constitution's framers saw as a "circuit breaker in the state's machinery of justice." He said the Apprendi decision "carries out this design by ensuring that the judge's authority to sentence derives wholly from the jury's verdict."

In the case before the court on Thursday, a man pleaded guilty to kidnapping his estranged wife, a crime that under Washington law ordinarily carries a maximum sentence of 53 months. At sentencing, however, the judge added an extra 37 months, based on his finding that the defendant, Ralph H. Blakely, Jr., had acted with "deliberate cruelty."

Washington's statutory maximum sentence for kidnapping is 10 years, well above what Mr. Blakely received. But the principle of the Apprendi decision still invalidated his sentence, Justice Scalia said, because it depended on a judicial rather than a jury finding of a fact that added 70 percent to the sentence Mr. Blakely would otherwise have received. Mr. Blakely had a right to the lower sentence but for the judge's intervention, Justice Scalia said.

Juries, rather than "a lone employee of the state," should make these decisions, Justice Scalia said.

The decision overturned a ruling by the Washington Supreme Court, which had upheld the state system. While several high courts in states with guidelines systems have likewise rejected constitutional challenges based on the Apprendi precedent, one court, the Supreme Court of Kansas, struck down its system, which the state then quickly modified.

According to various lists, which may not be definitive, states that use systems similar to Washington's are Alaska, Arkansas, Florida, Michigan, Minnesota, North Carolina, Ohio, Oregon, Pennsylvania and Tennessee.

In her dissenting opinion, Justice O'Connor said the court had entered "uncharted territory." She said the guidelines systems represented an effort to treat like cases alike, giving "guided discretion" to judges while eliminating wide disparities in sentencing that turned on judicial "idiosyncrasies" or racial bias.

"It is difficult for me to discern what principle besides doctrinaire formalism actually motivates today's decision," she said.

Justice Breyer, in his dissenting opinion, said the criminal justice system was now left with a range of unattractive options, including such steps as separate jury trials for sentencing, a system now reserved for death penalty cases. As a practical matter, he said, such a system would be workable only because most defendants forego trials and plead guilty.

Whether criminal defendants as a whole are likely to be helped or hurt by the ruling is open to debate. The National Association of Criminal Defense Lawyers and the American Civil Liberties Union filed briefs on Mr. Blakely's behalf. But Justice Breyer suggested that one legislative response to the ruling might be "astronomically high sentences," from which judges could depart downward at their discretion.

Justice Kennedy's brief dissenting opinion said the court had both ignored principles of federalism and had failed to respect the need for "the dynamic and fruitful dialogue between the judicial and legislative branches of government that has marked sentencing reform on both the state and the federal levels for more than 20 years."

The wait for a resolution of the fate of the federal guidelines may not be long. Defense lawyers are likely to be quick to challenge the guidelines and federal judges, many of whom have disliked the system, may be receptive to the arguments. Even before the decision, a federal district judge in Massachusetts last week issued an impassioned denunciation of the guidelines.

Once there is a district court decision that is suitable for appeal, the Justice Department might well move to bring it directly to the Supreme Court, under a permissible but rarely used procedure.

Any ruling will apply to all cases still on direct appeal, but would not necessarily be retroactive. In a death penalty case today, the court ruled that a 2002 decision invalidating the death penalty laws of five states could not be applied retroactively to death sentences that were already final when it was issued.

The 2002 decision, Ring v. Arizona, was itself an application of the Apprendi decision to laws that permitted judges rather than juries to make the finding that placed a murder defendant in the category of those eligible for a death sentence. In addition to Arizona, the states were Colorado, Idaho, Montana and Nebraska. All quickly changed their laws to conform to Apprendi, leaving in doubt the status of those inmates who had previously been sentenced to death.

The United States Court of Appeals for the Ninth Circuit then ruled that the decision was retroactive, thus invalidating as many as 100 death sentences. But the Supreme Court on Thursday overturned that ruling, finding the retroactivity analysis incorrect. Justice Scalia wrote the majority opinion in Schriro v. Summerlin, No. 03-526. Justices Breyer, Stevens, Souter and Ginsburg dissented.

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