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January 13, 2005 - The Washington Post (DC)

Legal Experts Debate Court Decision's Effect On Federal System

By Jerry Markon, Staff Writer

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Blakely News Archive

Yesterday's Supreme Court ruling on federal sentencing had been keenly awaited for months because it was expected to resolve questions that had put cases on hold throughout the federal system.

But it is still unclear how it will affect that system.

Legal experts acknowledged that the court's decision-which said that federal sentencing guidelines are no longer mandatory, but only advisory-could have far-reaching implications, but they also said it is possible that not much will change as a result.

Prosecutors and defense lawyers saw a variety of possibilities. Unhappy prosecutors said judges who had felt constrained by the guidelines will now shorten many sentences. At least one federal judge agreed. Other lawyers said they fear wide disparities in sentencing nationwide-the problem the sentencing guidelines were designed to eliminate.

Defense lawyers, who were more heartened by the ruling, predicted a flood of appeals from defendants seeking to challenge their sentences.

Yet legal experts pointed out that judges have grown accustomed to relying on the guidelines and still must use them in an advisory way when meting out punishment.

"This is the most significant federal criminal law decision to come down in many years, but to the extent that courts will use what has been ingrained in them, there may be little change," said James A. Cohen, a law professor at Fordham University in New York City.

"I think in the mainstream of cases, with the mainstream of judges, you're probably not going to see much change in sentences," he said, "though you may see some more leniency."

In its twin majority opinions, the court declared unconstitutional key portions of the complex system used to sentence criminal defendants. The ruling essentially restored the system that was in place before the guidelines were established in the 1980s. That system allowed judges to sentence defendants up to the statutory maximum.

The urgency behind yesterday's ruling lay in an earlier Supreme Court decision. Last June, in a 5 to 4 decision, the court ruled that Washington state's sentencing guidelines were unconstitutional.

That decision created turmoil in federal courts nationwide.

As lawyers waited for the Supreme Court to clarify whether it applied to the federal guidelines as well, prosecutors rushed to change indictments and plea bargains ground to a halt in many districts.

Defense lawyers flooded U.S. district courts with requests for new and reduced sentences. Some judges issued two sentences -- one in case the guidelines were overturned.

Yesterday's ruling is likely to smooth the system's day-to-day operations, at least in the short term, lawyers said. But it remains unclear what will happen after that.

The Justice Department issued a statement saying it is "disappointed" by the rulings and urged judges to continue to follow the sentencing guidelines.

Some legal observers predicted that Congress will intervene and rewrite the sentencing laws to conform to yesterday's opinion.

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said he will review the decisions and "work to establish a sentencing method that will be appropriately tough on career criminals, fair and consistent with constitutional requirements."

Sen. Orrin G. Hatch (R-Utah), who has been deeply involved in sentencing issues, said in a statement that it is too soon to tell "whether the Court's interim advisory guidelines will be appropriate in the long run."

"The ball is now in Congress's court," he concluded.

Without congressional intervention, one federal appeals court judge predicted in an interview that U.S. district judges are likely to give the majority of defendants lesser sentences than before.

The judge spoke on the condition of anonymity because judicial ethics generally prevent judges from speaking to the media.

One federal prosecutor agreed, saying some judges have indicated displeasure with the guidelines' constraints.

"There's not a lot we can do about it," said the prosecutor, who spoke on the condition of anonymity because he was not speaking officially for the Justice Department. "We will largely have to beat our brains out to get convictions and then throw up our hands at sentencing."

One federal judge who publicly expressed her displeasure was Leonie M. Brinkema in Alexandria. Last summer, when the guidelines required her to impose a life sentence on one member of an alleged "Virginia jihad network" and an 85-year term on another, Brinkema called her own ruling "appalling" and said she had sentenced al Qaeda terrorists to far less time.

John K. Zwerling, the attorney for one of the defendants, said yesterday that his client and two other defendants have already challenged their sentences. He said yesterday's ruling will vastly increase their chances.

"There are a lot of defendants in the pipeline who will receive huge benefits from this decision," Zwerling said. "We're just hoping that the federal system will become more humane."

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