July 26, 2004 - The Oklahoman (OK)
Criminal Sentencing Takes Guesswork
By Michael Baker
U.S. District Judge Tim Leonard doled out multiple-choice sentences last week, giving a bank robber three prison term options. Leonard has given such sentences four other times in the past few weeks.
He is hoping the U.S. Supreme Court soon will clarify which sentence is constitutional, given the court's recent ruling striking down tough sentencing laws in Washington state.
"Based upon the uncertainty of the Supreme Court and the impact of the Blakely v. Washington case, the court is going to impose three sentences," Leonard said Wednesday from the bench. "Trying to guess what the Supreme Court might or might not do is a rather precarious position sentencing judges are in."
The law occasionally ripples with change, but the June 24 decision expanding the right of a jury trial to sentencing issues has caused a tidal wave.
The high court's Blakely ruling has left a wake of divided courts and lightly treading prosecutors. Defense attorneys are clamoring to rock the boat, and thousands of convicts are fishing for shorter prison terms.
"This is a much bigger flux than usual," said Barry L. Johnson, a professor at Oklahoma City University School of Law. "What's happening now, I think a lot of people are describing as utter chaos."
Guidelines called into question U.S. district and appellate court judges have ruled that since Washington state's sentencing system resembles federal rules, the high court's decision makes U.S. sentencing guidelines unconstitutional. Other judges have found that Blakely doesn't affect federal sentencing.
"Even the judges within this district are taking different approaches," Leonard said.
"In my 20 years of practicing law, I have never seen a decision that caused more confusion," said U.S. Attorney Robert McCampbell, head prosecutor for Oklahoma's Western District.
Already, two petitions have been filed asking the Supreme Court to clarify how the Blakely decision affects federal law. Unless the court convenes early, the soonest it would consider the petitions is October.
A legislative fix Legislators are getting into the mix. Orrin Hatch, R-Utah, chairman of the U.S. Senate Judiciary Committee, said he is looking for a legislative way to stem the tide of a system "run amok."
Under federal guidelines, judges can add time to a defendant's sentence if they find a preponderance of the evidence shows an aggravating factor, such as use of a gun, to be true.
Some judges, such as Leonard, are hesitant to guess the effect of the Supreme Court's decision regarding Washington state law on the federal guidelines.
"What I'm trying to do with alternative sentences is avoid resentencing based on what the Supreme Court may do," said Leonard, who has been on the bench for 12 years. "It could have the largest ramifications of any decision since I've been on the bench."
Wednesday, each sentence Leonard gave Eric Justin Moses, who had pleaded guilty to four bank robberies, reflected a different interpretation of the Blakely case:
About 8,000 cases are pending appeal on sentencing issues, and more than 50,000 cases await sentencing in district courts, said McCampbell, who is chairman of the U.S. Attorney General's Advisory Committee's Sentencing Guidelines Subcommittee.
A paralyzed system Most sentencings in Oklahoma City federal court were rescheduled in the first weeks after the Blakely decision.
"Essentially, the system has been paralyzed in the short term, with the long-term implications yet to be determined," according to a survey presented to the U.S. Senate Judiciary Committee.
Thousands of cases are resurfacing as convicts try to get long sentences thrown out.
Michael Snider, the first person convicted in Oklahoma to argue a Blakely defense, says his three-decade sentence should be reduced. He filed his pending appeal with the Oklahoma City federal court this month.
In 1996, a jury found Snider, 39, guilty on six counts of making and selling of methamphetamine. Snider received a 30-year prison term, which included six years because the judge believed Snider was a conspiracy leader.
McCampbell said Blakely would not affect Snider's case because Supreme Court precedent precludes the ruling from applying to cases that have finished the appeals process.
Plea bargaining problem A major effect of the Blakely decision has been to halt plea bargaining, said Tony Lacy, an assistant federal public defender in Oklahoma City.
"That's the biggest problem right now," Lacy said. "With all the variables, why would you plea and waive the right to appeal? The ambiguity of not knowing what you're losing gives one great hesitation in signing a contract."
If plea bargains come to a halt, the federal court system could become backlogged. In more than 95 percent of federal cases, defendants enter guilty pleas.
Defense attorneys across the country say now is a perfect opportunity to change draconian sentencing laws.
"We believe we have before us an opportunity, unprecedented since 1984, to create a truly just and rational federal sentencing guidelines scheme," E.E. Edwards and Barry Scheck of the National Association of Criminal Defense Lawyers wrote in a letter to Attorney General John Ashcroft and the administrative chief of the U.S. federal courts, L. Ralph Mecham.
If the Supreme Court decides federal guidelines are unconstitutional, the effect on American justice could be bigger than the 1966 Miranda ruling, which reinforced the rights to remain silent and to have an attorney, professor Johnson said.
"Miranda doesn't apply to every single federal conviction and many, many state convictions the way Blakely does," Johnson said. "This is a much bigger deal than a lot of the other high-profile cases that we think about in the criminal justice system."