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July 6, 2004 - The Post and Courier (Charleston, SC)

Sentencing Ruling Stirs S.C. Hope

Supreme Court Decision Could Aid Beaufort Man

By Herb Frazier

A U.S. Supreme Court ruling on Washington state's sentencing guidelines has the nation's federal courts scrambling, but it has a South Carolina man smiling.

Last month, the Supreme Court said Washington state's sentencing law unconstitutionally allows judges to lengthen defendants' sentences based on facts the defendants had not admitted or that were not part of a jury's verdict.

Although the ruling was on a state's sentencing law, it has broad implications on the 20-year-old federal sentencing guidelines. It is too early to tell, however, what effect the ruling will have on federal judges in South Carolina. The ruling does not affect the state's courts.

In a memo, Frank Bowman, a law professor at the University of Indiana School of Law, told the U.S. Sentencing Commission the ruling throws the federal courts into chaos as judges determine its implications.

Bowman said, "In the longer term, either the guidelines will be transformed into an annex to the criminal code, augmenting the power of prosecutors and decreasing the authority of judges, or more likely the whole structure will be thrown aside."

Andrew Siegel, a constitutional law professor at the University of South Carolina Law School, said the court did not outlaw the guidelines directly "but the reasoning the court used (in the Washington state case) seemed to strongly suggest that the federal scheme is also unconstitutional."

That has created "a huge buzz" in federal prisons and among criminal defense attorneys nationwide, said Charleston attorney Andy Savage. It also has caused some judges to drastically reduce sentences even though the court did not strike a direct hit on the rules, he said.

For example, a federal judge in West Virginia recently reduced the sentence of a defendant who conspired to make methamphetamine from 20 years to one year.

When Senior U.S. District Judge Sol Blatt presides over criminal cases later this month, he said he's not sure what kind of sentences he might impose. "All of us are wondering about" the Supreme Court's decision, the judge said. "I am going to decide that issue when I am faced with it, and I will be facing it soon."

Ninth Circuit Solicitor Ralph Hoisington said the ruling does not affect the state's criminal courts. The ruling excludes sentencing enhancements based on a defendant's criminal record, the solicitor said. In South Carolina, the two- and three-strikes law automatically gives defendants mandatory life sentences for prior convictions.

The likelihood of the Supreme Court striking down the federal sentencing rules gives hope to Terrance Smalls of Beaufort, who is appealing his 40-year sentence in February on a federal drug conviction because it is 75 months more than it would have been if he had not been implicated in a murder 10 years ago.

Even though Smalls was never charged with killing Audrey Smith Stoeckle, he admitted that he was present the night she was shot to death. Based on that admission, Blatt gave Smalls more time.

Savage, who represents Smalls, has appealed to the U.S. 4th Circuit Court of Appeals, arguing that his client deserves a shorter sentence because the federal law is unconstitutional.

In the Washington case, the Supreme Court said a judge can't enhance a sentence beyond the sentencing guideline for the primary offense unless the defendant admits to aggravating factors or a jury finds the fact to be true. Judges can take into consideration prior convictions, the court ruled.

Ralph Blakely challenged the Washington state law. He had pleaded guilty to kidnapping his estranged wife, a crime that carried a sentence of 53 months. But a judge raised the penalty to 90 months after he found that Blakely had acted with "deliberate cruelty," a finding not accepted by Blakely or a jury.

The Supreme Court ruled the additional prison time for Blakely violated his right to a jury trial.

Because of the ruling, prosecutors are unsure how the sentencing guidelines might apply and it is expected to change the way they handle plea negotiations.

Parks Smalls, South Carolina's chief federal public defender, said if the ruling brings new rules "we will have to make more inquiries up front before we plead guilty to ask what factors the government will use in the enhancement process." Smalls is not related to Terrance Smalls.

Under current rules, judges can extend sentences based on a variety of criteria, including a defendant's role in the crime, background and whether a defendant was armed. A defendant "can be convicted of jaywalking and sentenced for murder," Smalls said. "That is what is emblematic of the old system. So much can be brought in even though you were not charged with it. It does not sound like American justice as we know it."

Officials with the U.S. Attorney's Office in South Carolina declined to comment, referring questions to the U.S. Department of Justice.

John Nowacki, a justice department spokesman, said, "The department is currently reviewing the decision and its ramifications. The issues raised are significant and complex." He declined to comment further.

As a result of the decision, Siegel said some federal judges are assuming that the guidelines are unconstitutional and are giving defendants sentences that fall within the minimum and maximum of the sentencing range.

"Other judges are using the guidelines but are not taking into account any fact not found by the jury or admitted to by the defendant and that has produced lower sentences," Siegel, a former Supreme Court law clerk, said.

A third option, which is used in Kansas but has not been adopted elsewhere, is to ask a jury to agree on the facts that have a bearing on sentencing, he said.

"Those are the options available to judges unless and until Congress changes the federal sentencing structure," Siegel said.

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