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January 13, 2005 - The Wall Street Journal (US)

Balance of Power: High Court Declares Guidelines On Sentencing Violate Rights

Federal Judges Are Handed Broad Discretion, and Told to Use Rules As Suggestions - Ball Is Now in Congress's Court

By Laurie P. Cohen and Gary Fields, Staff Reporters

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Blakely News Archive

Federal sentencing guidelines, enacted two decades ago to standardize prison sentences nationwide, are unconstitutional because they violate a defendant's Sixth Amendment right to be tried by a jury, the U.S. Supreme Court ruled.

The decisions, in a pair of 5-4 rulings, handed broader discretion to federal judges by telling them to consider the guidelines merely as a suggestion. The guidelines had bound judges to mete out punishment based on a 1,800-page sentencing manual written by a congressionally established commission. The system forced judges to boost sentences based on factors that a jury hadn't ruled on. Now judges are permitted, but not required, to do so.

While yesterday's ruling may shift the balance of power back to the judicial branch temporarily, Congress-especially one dominated by Republicans in both houses-may seek to reassert legislative control by pushing through aggressive mandatory sentences. The Department of Justice has already begun discussing how to set such rules without violating the Constitution.

Rep. Tom Feeney, a Florida Republican who has pushed for tougher scrutiny of lenient judges, said the court's decision is "an egregious overreach into Congress's constitutional power" and called for quick action to ensure that the spirit of the old guidelines is preserved.

Those who believe the guidelines were too harsh generally praised the ruling. "Judicial discretion is greatly expanded here," said Kevin Reitz, a sentencing expert who teaches at University of Colorado's law school. "While in the short term, this leaves the federal sentencing system better off than before, the great irony is that it'll be easy for Congress to make the system much worse."

The rulings cap a tumultuous several months for the federal sentencing system and will affect the 60,000 criminals sentenced each year in federal courts. A few thousand defendants who have already been convicted but are appealing their sentences may also have a chance to get less prison time. However, the Supreme Court dashed the hopes of tens of thousands of other federal prisoners by making clear that its decision won't apply retroactively to cases that had reached final resolution.

The Supreme Court foreshadowed yesterday's ruling last June 24 by striking down sentencing guidelines in the state of Washington that were similar to the federal guidelines. Both sets of guidelines directed judges to boost sentences based on exacerbating factors such as the defendant playing a leadership role in a crime or acting with deliberate cruelty. The standard for deciding whether to include these "enhancements" was merely a preponderance of the evidence as determined by the judge-rather than the "beyond a reasonable doubt" standard used by juries in convicting a defendant.

In yesterday's ruling, the court ruled by a 5-4 majority that mandating such enhancements violated the constitutional right of defendants to a trial by jury. "There is no distinction of constitutional significance between the Federal Sentencing Guidelines and the Washington procedures at issue in that case," wrote Justice John Paul Stevens in the majority opinion, joined by Justices Antonin Scalia, David Souter, Clarence Thomas and Ruth Bader Ginsburg.

But those five justices couldn't agree on what should happen next-whether judges should ignore the guidelines entirely or keep using them in some form. Instead, a new five-justice majority took shape: the four justices who dissented in the first opinion, plus Justice Ginsburg. This separate majority concluded in a second opinion that the guidelines should stay almost entirely intact, except for a few provisions that make them generally mandatory. The second opinion, authored by Justice Stephen Breyer, says judges should now treat the guidelines as advisory. Joining Justice Breyer, who was one of the architects of the federal guidelines, were Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Anthony Kennedy and Justice Ginsburg.

Because the rulings give judges leeway to show leniency to criminals who previously would have automatically been marked for severe punishments, they were welcomed by some defense lawyers and other critics of the old guidelines system including many federal judges. These critics believe the old system tended to punish defendants harshly based on thinly supported evidence that was never proved before a jury. A particular issue was the role of guesswork in determining the amount of drugs involved in a crime, and thus the length of the sentence.

The second opinion, written by Justice Breyer, gave federal appeals courts specific guidance on reviewing disputed sentences, saying the key determinant is the "reasonableness" of the original sentence. It's not clear how courts will interpret that word.

"The question is whether judges formerly bound by the guidelines will be able to step back from them now and regard them as truly advisory," said U.S. District Judge Nancy Gertner of Boston. She predicted that the Supreme Court's ruling won't signify a return to the "wild West" atmosphere prior to the 1984 Sentencing Reform Act, when rulings sometimes varied widely based on the personal predilections of judges. That is because most of the nation's judges have sentenced only under the guidelines.

Justice Breyer tipped his hat to the possibility that the Supreme Court won't have the final say. "The ball now lies in Congress' court," he wrote. "The National Legislature is equipped to devise and install, long-term, the sentencing system compatible with the Constitution that Congress judges best for the federal system of justice."

Justice Department officials talked yesterday of seeking a quick fix in Congress. Christopher Wray, who heads the department's criminal division, said the guidelines have ensured that "similar defendants who commit similar crimes receive similar sentences. Because the guidelines are now advisory, the risk increases that sentences across the country will become wildly inconsistent."

Frank O. Bowman III, a former federal prosecutor who teaches law at Indiana University, said he believes congressional intervention is imminent. He pointed out that in many cases, prosecutors persuade defendants to plead guilty and cooperate by promising to reward them for "substantial assistance." Under the guidelines, defendants who receive such recognition are exempt from the guidelines' strict provisions. Now that the guidelines are only advisory, defendants may see less need to cooperate. "The Department of Justice has just lost all of its bargaining leverage" with defendants, asserts Prof. Bowman.

Blain Rethmeier, a spokesman for Pennsylvania Republican Senator Arlen Specter, the Senate Judiciary Committee chairman, said the senator would work with the Department of Justice and the U.S. Sentencing Commission to come up with a long-term remedy, adding that the senator will call for hearings as soon as possible.

"The Supreme Court's decision to place this extraordinary power to sentence a person solely in the hands of a single federal judge-who is accountable to no one-flies in the face of the clear will of Congress," said Rep. Feeney, the Florida Republican.

Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, urged Congress to "resist the urge to rush in with quick fixes that would only generate more uncertainty and litigation and do nothing to protect public safety."

While declining to address specific legislative proposals, Mr. Wray of the Justice Department said "there are many advantages" to an earlier proposal by Indiana University's Prof. Bowman. He has recommended that Congress take the top off existing guideline ranges, replacing them with the legally prescribed maximum for the crime. As in the pre-1987 system, judges wouldn't have to give a justification for slapping a tough sentence on defendants, so long as it was below the legal maximum.

Of the estimated 180,000 federal prisoners, no more than several thousand have cases on direct review, meaning that under yesterday's Supreme Court ruling most won't be able to seek a shorter sentence right now. More than 95% of all cases are resolved through plea bargains, rather than jury trials. In these instances, defendants are usually required by the plea agreement to waive appeal rights.

One high-profile defendant who stands to benefit from yesterday's rulings is former Dynegy Corp. executive Jamie Olis. Mr. Olis was convicted for his role in a fraud case and was sentenced in March to 24 years in prison, largely because of enhancements now rendered unconstitutional by the Supreme Court.

The basic crime for which Mr. Olis was convicted carried minimal prison time. But a Houston federal judge determined the loss from Mr. Olis's fraud to be $105 million. That determination alone added more than 10 years to his sentence. Oral arguments on Mr. Olis's appeal are scheduled for Jan. 31.

"This is good news," says David Gerger, Mr. Olis's lawyer in Houston. "This decision gives judges the discretion they need to be fair and to make sure that sentences are based on reliable and tested evidence."

The two cases that led to yesterday's rulings came up for sentencing following the ruling last June 24 in Blakely v. Washington on Washington state sentencing rules. In the first case ruled on yesterday, Freddie Booker was charged with possession with intent to distribute crack cocaine. Based on his criminal history and the quantity of drugs determined by the jury, the guidelines required the judge to sentence Mr. Booker to about 18 years in prison.

But the judge concluded by a preponderance of the evidence that Mr. Booker possessed more crack and that he was guilty of obstructing justice. Those findings required the judge to impose a sentence of 30 years to life. An appellate court held the guidelines to be unconstitutional based partly on a 2000 Supreme Court ruling that said that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." The government appealed to the Supreme Court, which backed the appellate court.

Meanwhile, Ducan Fanfan was sentenced by a federal district judge in a cocaine case only on the amount of drugs the jury determined, rather than on a greater amount of cocaine and a leadership role in the offense, as prosecutors urged. Mr. Fanfan, who would have received an enhanced sentence of up to 16 years, instead was sentenced by the judge to slightly more than five years. The government appealed, and the Supreme Court agreed that the district judge should reconsider the sentence. As with other sentences under the new system, the district judge will have the option of giving an enhanced sentence to Mr. Fanfan based on the extra cocaine and the alleged leadership role, although he isn't required to do so.

Since last June's ruling, federal courts have been in disarray, with some holding the guidelines unconstitutional and others mandating they must be used. In California and elsewhere, judges were told by appeals courts to put sentencing facts to juries to decide. Yesterday's ruling removed this power from juries and put it back in the hands of judges.

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