A divided Supreme Court yesterday raised critical questions
about the future of the 17-year-old federal criminal-sentencing
system under which more than 60,000 convicts are sentenced each
In a two-hour hearing, the nine justices heard arguments about
the constitutionality of federal sentencing guidelines, which
were enacted in 1987 to standardize sentences for similar crimes
nationwide. But legal specialists say disparities remain. The
judicial system often adds years to sentences for conduct that
has never been proven to juries beyond a reasonable doubt or
admitted to by defendants. And prosecutors can enhance or cut
sentences based on information they provide probation officers
and judges before sentencing.
The question now before the court: whether to apply to the
federal sentencing system a June 5-4 high-court ruling, called
Blakely v. Washington. That decision barred trial judges
in Washington state from boosting a defendant's sentence based
on any fact not considered by juries or admitted to by defendants,
except for prior convictions.
Remarks from participants and spectators in the Supreme Court's
review of the federal sentencing system.
"We would become the Sentencing Commission. I thought
I'd escaped." - Justice Stephen Breyer, a former member
of the commission that sets guidelines for judges, on concerns
that the high court would be overwhelmed with cases challenging
"I don't care if the upper level of the guidelines
were prescribed by a court. Even if they were prescribed by a
court, how does that eliminate the jury trial problem? The whole
reason for jury trials is we don't trust judges." -
Justice Antonin Scalia
"The guidelines as we know them are very likely to
be found unconstitutional. The big question is what they do about
that, whether or not the guidelines have to be struck down completely,
whether they can be applied in part, whether they become advisory."
- Frank Bowman, an Indiana University law professor who attended
"Whether it's a rule, statute or guideline, why should
that make a difference for the Sixth Amendment?" - Justice
David H. Souter.
"What percent would violate that rule?" -
Justice John Paul Stevens.
"About 65 percent (of federal criminal cases) ...
any way you slice this, it's going to have a tremendous impact."
- Acting Solicitor General Paul Clement.
"It looks like the guidelines are going to have a
difficult time picking up an additional vote. If that's the case,
the Justice Department and the Sentencing Commission are going
to have to work closely to ensure the goals of sentencing reform
are continued." - Michael O'Neill, member of the Sentencing
Commission, after the argument.
"It's very likely to be an interim solution."
- Rosemary Scapicchio, representing one of the defendants, on
the court's upcoming decision in the appeals.
"Congress may well get involved." - Acting
Solicitor General Paul Clement