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December 12, 2004 - The Philadelphia Inquirer (PA)

Sentencing Guidelines On Trial

By Joseph A. Slobodzian, Staff Writer

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Blakely News Archive


Activist judges.

Liberal, activist judges.

For months it was a mantra for candidates from president to Congress as they railed at the third branch for everything from undermining marriage to subverting the Constitution.

What's a judge to do? More precisely, what's a judge supposed to do?

The title, the dictionary says, is related to the Latin words for justice and to decide.

And for centuries irreconcilably opposed parties went to judges - who were fellow citizens, knowledgeable (ideally) and even-tempered, invested with the authority of the people - as an alternative to the even older dispute-resolution system: violence.

Still, every decision is bound to leave one side, and sometimes both, unhappy. Now, in this hypercharged political atmosphere, U.S. judges are at another crossroads in what is arguably their most important decision-making role: sentencing.

Sometime soon, possibly tomorrow, the Supreme Court will decide whether the federal sentencing guidelines - the congressionally sanctioned rules by which federal judges have sentenced criminals since 1987 - remain constitutional.

The worry of many is not what judges would do if the guidelines were invalidated, but the reaction of an increasingly conservative Congress.

Here's the scenario: Seeing its two-decade-old attempt to impose national consistency on criminal sentences dispatched by - yes - activist judges, Congress rewrites the criminal code with specific, mandatory prison terms for every offense.

If it sounds far-fetched, a lot of lawyers are not laughing.

"Word is that some members [of Congress] already have the bills drafted," said a Philadelphia defense lawyer about a rewriting of the criminal code.

The fear is not unwarranted. To the consternation of judges and defense lawyers, Congress in the last 15 years has frequently supplemented the guidelines with mandatory prison terms that almost take the judge out of the courtroom.

"That's the direction," said Peter Goldberger, a Philadelphia lawyer who specializes in sentencing-related federal appeals and who helped write an amicus brief for the National Association of Criminal Defense Lawyers.

On Oct. 4, as the Supreme Court heard argument in two appeals that will likely decide the future of federal sentencing guidelines. How we got to this point is complicated and ties in with trends toward harsher sentencing and the federal prosecution of crimes involving particularly thorny social issues, such as guns and drugs, that used to be handled by local prosecutors.

There are three ways to handle sentencing: A judge has full discretion to determine the punishment; a judge determines a sentence based on guidelines for the crime and the circumstances; statutes dictate a sentence, leaving a judge no leeway.

Before 1987, a federal judge determined a broad range of minimum and maximum penalties. Critics said the system promoted public cynicism and disrespect for the justice system.

Sentences were often driven by a judge's biases. Poor, minority defendants often got long prison terms, while affluent, white defendants got minimal sentences or probation for the same crime. Judges in some parts of the country were more lenient than those elsewhere, or treated property crimes more seriously than crimes involving fraud or finance.

Congress reacted in 1984 with the Sentencing Reform Act, which created a U.S. Sentencing Commission and ordered it to draft guidelines that federal judges had to use in sentencing. The guidelines became effective in November 1987.

Basically, under the guidelines, a person convicted in federal court has a presentence investigation by a probation officer, whose evaluation of various criteria - such as the crime, the defendant's criminal history, injury to the victim, and any monetary loss - yield a score that carries a recommended range of imprisonment.

The judge must sentence within that range except in special circumstances, such as a prosecutor's motion for leniency because of the defendant's cooperation, or the even rarer defense motion involving extraordinary personal circumstances. Judges who depart from the guidelines must explain why, and either side may appeal.

Though many federal judges chafed at the restrictions, the guidelines were considered "tough on crime" and were popular with the public and the politicians they elected.

Enter Ralph Howard Blakely Jr., a Washington state man who pleaded guilty to kidnapping his estranged wife.

A state judge added 37 months to the 53-month sentence stipulated by the guidelines after determining that Blakely had acted with "deliberate cruelty." Blakely's judge, as allowed by the guidelines, made "findings" and imposed the tougher sentence.

Such judicial findings trouble criminal defense lawyers because the judges may use a looser legal standard - "preponderance of the evidence" - than the "beyond a reasonable doubt" that juries use in criminal cases.

On June 24, the Supreme Court ruled, 5-4, that Blakely's sentence violated his Sixth Amendment right to a trial by jury. Any facts used by a judge to justify a sentence longer than that recommended by the guidelines must be based on facts the jury had when it convicted the defendant.

Technically, the Blakely v. Washington decision invalidated only Washington state's sentencing guidelines, but officials in 10 other states with similar sentencing procedures, including Pennsylvania, said they believed they also were now vulnerable to challenge.

And the federal guidelines?

Supreme Court Justice Antonin Scalia, who wrote the majority opinion, noted that the Blakely decision did not address the federal guidelines, even though they were almost identical to Washington's.

Justice Sandra Day O'Connor, writing for the dissent, disagreed: "What I have feared most has now come to pass. Over 20 years of sentencing reform are all but lost."

Within days of the June decision, the federal guidelines began coming apart at the seams. Federal judges in Utah and Pennsylvania ruled that the guidelines were unconstitutional, based on Blakely. Federal prosecutors began postponing sentencings.

Two U.S. Courts of Appeals split on the guidelines' constitutionality, and on July 12 the full Second Circuit in New York took the unusual step of asking the Supreme Court to rule on the federal guidelines to "minimize what we see as an impending crisis in the administration of criminal justice."

There are strong, competing concerns at play. Society in the abstract wants to be tough on crime. In practice, as shown by the New York legislature's vote Tuesday to reduce some mandatory sentences, stiff, inflexible penalties crowd prisons and can result in extreme sentences.

While the word guidelines sounds as if it gives judges leeway, the current guidelines are so formulaic that they don't. The prison-term range within which the judge must sentence is so narrow - usually six to 12 months - that it is meaningless to the defendant.

Goldberger, the Philadelphia-based lawyer, said the high court could decide to strike down just part of the guidelines or construct some short-term fix, such as tying the judge's sentence exclusively to the facts underlying the jury's verdict.

Whatever the ruling, it could still trigger more-rigid laws passed by vote-seeking politicians.

What the Supreme Court's decision is unlikely to resolve is the debate over the amount of discretion we as a society want judges to use. At times on Oct. 4, the frustration among the nine justices was clear.

Philadelphia lawyer Ian M. Comisky, who specializes in defending white-collar defendants, supports the pre-guidelines world: "We simply have got to get a real person involved in sentencing." He argues that the guidelines upset the balance between prosecution and defense; now, prosecutors can anticipate a sentence when they decide what charges to bring, whether to plea-bargain, and, if so, whether to file the coveted motion that lets a judge depart from guidelines.

Mary Price, general counsel for Families Against Mandatory Minimums, a Washington group, said she believes the current guidelines have "a tremendous amount of injustice." But her group does not support turning back the clock: "We certainly believe in a sentencing system that respects the defendant's right to due process and trial by jury, but also provides for some discretion on the part of the sentencing judge."

In other words, more discretion, but not too much.

Center City lawyer Louis C. Bechtle understands the role of a judge. Bechtle, 76, retired in 2001 after 29 years as a federal judge in Philadelphia.

"There is no question that there were many, many deficiencies in the former system," Bechtle said. But under the guidelines, he said, judges have had almost no authority to use the information they get in detailed presentencing reports to craft an individual sentence.

"The guidelines were like killing a fly with a hammer," Bechtle said. "We were pushed out of the equation. . . . A lot of judges felt, 'We don't belong here. What are we doing here? We're just score-keepers?'"

What may in the end force a move to "more discretion but not too much" is the cost.

"The economics of this for society are just crushing," Bechtle said of a prison population burgeoning under the guidelines. "There has got to be a balance."

Whether the Supreme Court and Congress can find that balance in today's toxic political atmosphere is the question.

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