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August 3, 2004 - The San Jose Mercury News (CA)

Justices To Sort Out Clash On Sentencing

Confusion Over Judges' Authority Has Had Unusually Swift Reaction

By Stephen Henderson, Knight Ridder

WASHINGTON - Reacting to what has been a summer of chaos in lower courts, the Supreme Court said Monday that it will clarify whether a June ruling that bars judges from unilaterally increasing jail terms might render current federal sentencing guidelines unconstitutional.

The justices will hear two cases Oct. 4, the first day of their new term, that address the fallout from Blakely vs. Washington, a bombshell ruling from the last days of their previous term.

In Blakely, the justices ruled 5-4 that the Sixth Amendment requires juries, not judges, to examine and agree upon the facts that might add years to prison terms for convicted criminals.

But federal sentencing guidelines endow judges with enormous power to increase prison time. So the decision has sent uncertainty shooting through judges' chambers across the country.

Typically, Supreme Court rulings rebound around lower courts for years before their impact is fully understood, or before judges and lawyers decide to ask the high court to revisit an issue. But Blakely has caused an unusually swift reaction.

In less than three months, scores of federal judges have concluded that the ruling forces them to dramatically lower sentences. Dozens have gone further, declaring the federal guidelines unconstitutional in light of Blakely. Three of the nation's 12 circuit courts of appeals have agreed with those conclusions.

Nearly everyone has asked the high court to give more specific guidance quickly to courts about what Blakely means.

"It has been a whirlwind," said Doug Berman, an Ohio State University law professor who's been tracking the issue on a Web site called Sentencing and Law Policy. "I certainly don't know about any decision the justices have agreed to reconsider this fast. But there are a lot of important questions they left unanswered, and they've got to answer them."

Citing the swiftness of the developing chaos, the Justice Department asked the high court last month to hear expedited appeals from two Blakely-related cases. In one, a cocaine supplier in Maine facing a 20-year sentence got only six years because the judge said Blakely prevented him from considering the defendant's criminal history or his role as a leader in a criminal organization.

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