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June 27, 2004 - The New York Times (NY)

Sentencing Decision's Reach Is Far And Wide

By Adam Liptak

In March, at the sentencing hearing after his conviction in a financial fraud case, Jamie Olis broke into tears when he heard his fate. Under the federal sentencing guidelines, which penalize defendants who choose to go to trial and can sharply increase sentences based on factors like the financial losses involved, a federal judge in Houston sentenced Mr. Olis, a 38-year-old midlevel executive with an infant daughter, to 24 years in prison.

On Thursday, in striking down Washington State's sentencing law, the Supreme Court almost certainly also doomed the federal guidelines that generated Mr. Olis's sentence and hundreds of thousands like it.

That means Mr. Olis, who has started serving his sentence while the courts consider his appeals, may be entitled to a much shorter prison term. In light of the decision, said Frank O. Bowman, an author of a treatise on sentencing law, "Olis's sentencing range would probably be zero to six months."

Thursday's decision requires any factor that increases a criminal sentence, except for prior convictions, to be proved to a jury beyond a reasonable doubt. Many sentencing schemes allow or require judges to impose longer sentences based on all sorts of criteria, including the defendant's background and the nature and severity of his crime.

The decision may also affect sentencing laws in at least seven states in addition to Washington and the federal system, said Kevin R. Reitz, an expert on sentencing at the University of Colorado. In all of those jurisdictions, many people sentenced in recent years may be expected to challenge their sentences. And prosecutors, defendants and judges in pending and new cases will face an altered landscape.

"It throws the whole country's criminal system into turmoil," said Professor Bowman, who teaches law at Indiana University.

In the federal system alone, which handles a small minority of criminal cases, the "vast majority" of 270,000 sentences in the last four years may be affected, Justice Sandra Day O'Connor wrote in her dissent. "The court ignores the havoc it is about to wreak on trial courts across the country," Justice O'Connor wrote.

John Kramer, a former executive director of the Pennsylvania Commission on Sentencing, said the decision could affect almost 90,000 state cases in the same period. In North Carolina, about 8,000 cases may be affected in those years, said Ronald F. Wright Jr., a law professor at Wake Forest University and an expert on sentencing law.

Jeffrey Fisher, who represents the defendant who challenged the Washington law, said that perhaps 2,600 Washington cases would be affected by the decision in that time frame.

The defendant, Ralph Blakely, had pleaded guilty to kidnapping his estranged wife, which carried a penalty of 53 months. A judge increased the sentence to 90 months based on his finding that Mr. Blakely had acted with "deliberate cruelty," which the defendant had not admitted and no jury had found. The Supreme Court said the imposition of additional time violated Mr. Blakely's right to a jury trial.

Legal scholars were virtually unanimous in agreeing with Justice O'Connor that the decision guts the federal sentencing guidelines.

"It will invalidate the federal guidelines," Mr. Reitz said. "The federal system looks to be invalid from top to bottom."

Pending cases, including those on direct appeal, are affected by the decision. So are, Justice O'Connor wrote, all sentences that followed a 2000 decision, Apprendi vs. New Jersey, on which Thursday's decision was based. A separate decision on Thursday suggested that neither Apprendi nor the new sentencing decision will otherwise be applied retroactively.

The Supreme Court gave trial judges no guidance on how to adjust to the ruling. Starting Thursday morning, for instance, federal judges conducting sentencing hearings had to decide whether to ignore the federal sentencing guidelines entirely, to rely on only those aggravating factors that had been proved to the jury or to carry on as before pending definitive guidance from higher courts.

The middle course is a likely one, experts said.

Luke Esser, a Washington State senator, said the Supreme Court's decision would please defense lawyers in the short run.

"The convicted felons that they represent are very happy that they may be having some of their sentences reduced," Mr. Esser said. "I think the general public and most of the state legislators will not share their enthusiasm."

It is less clear whether defendants will be better off in the long run.

Also unclear is whether the decision will give judges more or less power in deciding sentences. The decision seemed to endorse both traditional sentencing schemes that leave sentences entirely up to judges so long as they do not exceed statutory maximums and schemes that designate fixed sentences for given crimes. Only a middle approach, in which judges are required to make their own factual findings to increase sentences, was held unconstitutional.

Sentencing guidelines that allow or require judges to impose more lenient sentences based on mitigating factors are apparently unaffected.

Prosecutors and judges may use a variety of stopgap measures to address the decision, experts said. Prosecutors can add more factors to indictments and to plea agreements. Judges can require juries to answer so-called special interrogatories concerning the additional factors or give juries a role in sentencing, as happens in death penalty cases.

State legislators in Washington will turn to fixing the flaws in the state's sentencing law identified by the Supreme Court when they reconvene in January, said Mr. Esser, a Republican and the vice chairman of the Senate judiciary committee.

The approach the Washington Legislature ultimately adopts may influence lawmakers in other states and members of the commission that oversees the federal guidelines. Mr. Esser said he favored longer sentences that judges may reduce based on mitigating factors. He dismissed the idea of giving jurors a larger role in sentencing as "too expensive to the point of impracticality."

Justice Antonin Scalia, writing for the majority in Thursday's decision, said that practical considerations must take a back seat to the Sixth Amendment's guarantee of a right to a jury trial. "Our decision cannot turn," Justice Scalia wrote, "on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice."

Mr. Bowman questioned that approach. "They're just upsetting the apple cart," he said. "They're saying, 'You guys pick up the apples.' "

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