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January 13, 2005 - The San Jose Mercury News (CA)

Justices' Revision Of Sentencing Rules Affects Thousands

By: Howard Mintz, Mercury News

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Blakely News Archive

Ushering in an age of uncertainty in federal sentencing rules, a splintered U.S. Supreme Court on Wednesday cast doubt on thousands of prison terms imposed on criminals ranging from drug dealers to corporate executives.

The high court, split 5-4 in six separate opinions, concluded that much of the 20-year-old federal sentencing system is unconstitutional because it has allowed judges to increase sentences based on facts never considered by juries. The justices did not scrap the rigid guidelines designed to create national uniformity in punishment, but diminished their power and appeared to give judges more flexibility in deciding prison time.

For thousands of federal defendants across the country, including convicted felons in the Bay Area, the ruling could mean new sentencing hearings and a chance for reduced prison terms. Prominent criminals such as former Silicon Valley investment banker Frank Quattrone, convicted in New York last year of obstruction charges, can ask the courts to revisit their punishment as a result of the Supreme Court ruling.

Legal experts agreed that the ruling will spawn a new generation of endless court fights over sentences, and perhaps raise issues for state systems such as California's.

They also predicted that Congress may want to immediately rein in the judiciary by creating tough minimum prison terms for more crimes.

"The biggest fear is the 800-pound gorilla called the United States Congress is going to flatten the criminal sentencing system in the federal courts," said Barry Portman, the longtime chief federal public defender in Northern California.

Prosecutors, defense lawyers and judges across the country have been eagerly awaiting the ruling since the summer, when the Supreme Court struck down Washington state's sentencing system and then agreed to consider whether that ruling applies to the federal system.

The federal guidelines are similar to Washington's. They establish boundaries for prison time based on factors such as nature of a crime and criminal history.

Judicial Discretion

Until recent legal challenges, judges could increase prison terms based on factors not presented to a jury. Prosecutors, for example, often present evidence at sentencing of a larger scope of drug dealing than detailed at trial.

The Supreme Court found that practice unconstitutional because it deprives defendants the right to have their fate determined by juries.

Congress enacted the guidelines in the mid-1980s in response to concern about widespread disparities in sentences for the same crimes in different parts of the country. The question now is the guidelines' status, and the extent to which the Supreme Court's ruling restores a judge's power to disregard them.

About 60,000 defendants are sentenced each year in the federal courts, although most are sentenced after plea deals. For years, many legal experts and judges have chafed under the guidelines, calling them too rigid. But advocates have praised them for producing more consistent sentencing and preventing judges from giving overly soft prison terms.

Rory Little, a Hastings College of the Law professor and expert on the federal sentencing system, said the Supreme Court struck a sensible compromise that would protect against unjust sentences. Little expects plenty of activity in the lower and appeals courts.

"You'll see a lot of resentencing and a lot of defendants will get benefits out of this," he said.

Wave of New Hearings

Since the Supreme Court ruled in the Washington case, federal judges have been postponing sentences, appeals have been left hanging and federal prosecutors have been forced to change the way they craft indictments. San Jose U.S. District Judge Ronald Whyte even took the unprecedented step of convening a special jury to decide a sentencing issue in one weapons case.

Justice John Paul Stevens, writing for the majority, decided one aspect of the case by rejecting the Justice Department's argument that last year's ruling in the Washington case did not apply to the federal system. Justice Stephen Breyer, writing for a different collection of justices, then resolved the thorniest part of the case, concluding that the federal sentencing guidelines would now be considered "advisory" for judges instead of binding.

In dissent, Justice Antonin Scalia warned that Breyer's reasoning would undermine the intent of the guidelines. This "will produce a discordant symphony of different standards, varying from court to court and judge to judge," Scalia wrote.

The two parts of the decision had different majorities of five justices, with Ruth Bader Ginsburg being the swing vote on both. On the issue of constitutionality, Ginsburg joined Stevens, Scalia, David Souter and Clarence Thomas. But in the second decision, making the guidelines advisory, Ginsburg switched sides, joining Breyer, Anthony Kennedy, Sandra Day O'Connor and Chief Justice William Rehnquist.

Many experts predict that Congress will step in to resolve any uncertainty created by the court's decision. In fact, Breyer, in his decision, suggested as much.

"Ours, of course, is not the last word," Breyer wrote. "The ball now lies in Congress' court."

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