Latest Drug War News

GoodShop: You Shop...We Give!

Shop online at and a percentage of each purchase will be donated to our cause! More than 600 top stores are participating!

The Internet Our Website

Global and National Events Calendar

Bottoms Up: Guide to Grassroots Activism

Prisons and Poisons

November Coalition Projects

Get on the Soapbox! with Soap for Change

November Coalition: We Have Issues!

November Coalition Local Scenes

November Coalition Multimedia Archive

The Razor Wire
Bring Back Federal Parole!
November Coalition: Our House

Stories from Behind The WALL

November Coalition: Nora's Blog

January 14, 2005 - The Wall Street Journal (US)

New Sentencing Battle Looms After Court Decision

Lawmakers Move to Regain Control Over Prison Terms; 'Congress Has Ample Power'

By Laurie P. Cohen and Gary Fields, Staff Reporters

Return to
Blakely News Archive

The fallout from Wednesday's landmark Supreme Court ruling quickly emerged with initial moves yesterday by the Justice Department and Congress to reassert control over federal sentencing and limit the broad discretion the court gave federal judges.

The court ruled that 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 ruling may shift power back to the judicial branch for now, but yesterday, Justice Department officials were scrambling to meet with members of Congress and start crafting a legislative fix that would swing power back their way. They want to revive the spirit and effect of the 1984 Sentencing Reform Act, which sought to remove disparity in federal prison terms and which paved the way for the now-unconstitutional mandatory federal sentencing guidelines.

Meanwhile, some federal judges said they would probably continue to adhere strictly to the guidelines in most cases. Some defense lawyers moved to amend appellate briefs, hoping that clients could be resentenced to a lower term. Many of the nation's prisoners sought to figure out what the ruling means for them.

Some Democrats called for a go-slow approach, including Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, who said, "Congress should resist the urge to rush in with quick fixes that would only generate more uncertainty and litigation."

And several high-profile defendants are hopeful about the ruling. Former technology banker Frank Quattrone was sentenced to 18 months in prison after his conviction on obstruction-of-justice charges. His spokesman, Bob Chlopak, said, "We definitely think the ruling will have an impact on our case and it'll be part of our appeal."

The flurry of reactions and activity reflects the two lines of impact expected from the landmark ruling. In the short term, judges, defense lawyers and prisoners will seek to interpret the Supreme Court decision. In the longer term, the outcome of the Congressional battle will determine whether new, stricter sentencing rules will replace the old guidelines.

In his year-end reports for 2003 and 2004, Chief Justice William H. Rehnquist focused on the need to repair the relationship between the judicial and legislative branches. He has made several speeches in recent years about Congress's attempts to interfere with judges who depart from federal sentencing guidelines. He has said that targeting judicial decisions of federal judges "could amount to an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties." In his most recent year-end report, issued Jan. 1, Judge Rehnquist noted that "there is still much work to do" to repair judicial-legislative relations.

The major Congressional skirmish will probably involve the House and Senate judiciary committees. F. James Sensenbrenner, a Wisconsin Republican who chairs the House committee, is a staunch supporter of mandatory minimum sentences, which aren't affected by the Supreme Court ruling.

Mr. Sensenbrenner also favors limiting judicial discretion over sentencing. Some colleagues believe he is likely to support a new set of mandatory minimums -- requiring judges to set a floor on certain sentences for set crimes -- to rein in judges.

Arlen Specter, the Pennsylvania Republican who is the new chairman of the Senate Judiciary Committee, is less likely to support mandatory minimums as a solution. Moreover, his newly appointed chief counsel is a member of the U.S. Sentencing Commission, which issues federal sentencing guidelines.

Yesterday, Mr. Sensenbrenner was out of the country, and Mr. Specter issued a statement Wednesday night that didn't tip his hand.

The Justice Department already has made some changes in the wake of Wednesday's rulings. Prosecutors said they had received preliminary verbal guidance from Justice advising them that they no longer need to include factors that could increase a sentence in their indictments.

Additionally, prosecutors won't continue to seek superseding indictments from past cases to include additional factors, such as drug amounts and loss amounts in white-collar cases. These factors weren't heard by juries but were often critical in determining the length of a defendant's sentence.

Six months ago, the Supreme Court cast uncertainty over federal sentencing guidelines when it ruled in the Washington state case of U.S. v. Blakely, a case involving a Washington man whose sentence was boosted by factors neither admitted by the defendant nor considered by the jury. Many expected that ruling would eventually apply to federal sentencing guidelines. They were right.

Judges in the overwhelming majority of states have operated as though the guidelines were already unconstitutional, even before this week. "We're fortunate here because we anticipated exactly what the Supreme Court did," said U.S. District Judge Lawrence L. Piersol of South Dakota. He said that since June, the South Dakota judges have treated the guidelines as advisory, rather than mandatory.

While Judge Piersol didn't anticipate having to review dozens of cases for resentencings, federal Judge George Kazen of Laredo, Texas, was more uncertain about the future of sentencing. The Fifth Circuit Court of Appeals, which includes Texas, had declared the guidelines constitutional and ordered judges to abide by them last summer.

Judge Kazen, whose district is on the Mexican border, has sentenced more than 600 people since June. "The appeals court has to decide whether it wants to send scores of people back from all over the country now, at the expense of marshals and transportation."

Judge Kazen says he can think of only a handful of sentences he would alter, and most of these would get longer, rather than shorter. In one instance, he would lengthen a sentence for a man convicted of threatening to kill a witness who was to testify against the defendant. In another case, Judge Kazen believed the guidelines were too soft on a defendant who raped a woman; because she was drunk, the defendant didn't use force, lowering his potential guidelines range.

In Salt Lake City, federal Judge Paul G. Cassell issued an opinion yesterday saying he planned to give heavy weight to the guidelines in imposing sentences in nearly all cases. "I'm only going to deviate where there's significant reason to do so," he said.

Judge Cassell, a Bush appointee, has been very public about his disdain for mandatory minimums and his passion for the sentencing guidelines-even though he was the first judge to find that the guidelines were unconstitutional after Blakely. In his opinion issued yesterday, he said that if judges exercise their discretion responsibly, "Congress may be inclined to give judges greater flexibility under a new sentencing system." If the discretion is abused, "Congress has ample power to respond with mandatory minimum sentences and the like."

Texas U.S. District Judge Keith Ellison says that the sentences he issued on Wednesday in Laredo, following the Supreme Court ruling "were far, far lower than" what he might have issued before the ruling.

The nation's prisoners are just beginning to digest the news. Some, like Ryan S. Pendergraft, 51 months into a 96-month sentence in a prison in Talladega, Ga., said, "Thank God For Blakely," referring to the Washington state case. It isn't likely that Mr. Pendergraft, convicted of loan fraud, will get his case opened anew, for the Supreme Court said Wednesday that its ruling applies only to those cases on direct appeal.

"Judging from the volume of letters we received, prisoners are misinterpreting Blakely," says Marc Mauer, assistant director of the Washington, D.C.-based Sentencing Project, which seeks to promote alternatives to prison. "Prisoners saw a glimmer of hope and they don't realize it's only a glimmer."

But in some instances, defense attorneys are fueling that hope. Houston Federal Public Defender Marjorie Meyers says her office is working overtime to supplement appeals briefs. "None of us expected the Supreme Court to say that the guidelines are unconstitutional," she says. Ms. Meyers says there are about 650 appeals pending in her office.

Among the high-profile defendants hopeful about the ruling, Mr. Quattrone had his sentence boosted by a federal judge in New York with a finding that Mr. Quattrone had lied in his testimony at trial. Such a finding, under this week's ruling, would now be unconstitutional.

Also affected is Kenneth Lay, former Enron Corp. chairman and chief executive, who is scheduled to go to trial in a Houston federal court later this year in a big financial-fraud case. Prosecutors brought new charges against Mr. Lay late last year, taking into account the Supreme Court's Blakely ruling. They asked that evidence once traditionally considered by judges at the time of sentencing and known as "enhancements" -- such as leadership role in the offense and dollar amount of the fraud -- now be put to the jury.

Mr. Lay's lawyers yesterday indicated that they are now reviewing these additional allegations and may seek to have them struck.

In recent months, prosecutors have had to bring new indictments to reflect these "enhancements," or to add time to sentences. Yesterday, Robert McCampbell, the Oklahoma City U.S. attorney who chairs the U.S. Attorney General's sentencing subcommittee, said such additional allegations in indictments will now be reviewed on a "case-by-case basis." In some instances, he says, prosecutors will move to strike them.

The Justice Department urged defendants signing plea agreements in the past six months to agree to "Blakely Waivers," which essentially said they waived their right to have their cases resentenced following the Supreme Court's ruling. Mr. McCampbell says he expects these waivers to stand.

[Sidebar] The Long Arm Of The Law

The Supreme Court's ruling Wednesday that federal sentencing guidelines are unconstitutional will immediately affect the justice system.

  • Judges: After 20 years of seeing their sentencing authority eroded, judges will have more discretion than they've had in a century. But it may be temporary, as Congress could try to legislate additional mandatory sentences.
  • Prisoners: Those whose cases are still on appeal may be able to persuade judges to reduce their sentences. But the court ruling explicitly states that cases that have been resolved can't be resurrected.
  • Prosecutors: Those who have been presenting sentencing factors to juries to increase sentences can return to presenting that information to judges.
  • Defense attorneys: Lawyers whose clients have appeals pending and raised sentencing issues can now challenge the penalties under the reasonableness standard created in Wednesday's ruling.
  • U.S. Sentencing Commission: The commission survives because the guidelines survive-albeit only in an advisory capacity.

Working to end drug war injustice

Meet the People Behind The U.S. Sentencing Guidelines

Questions or problems? Contact