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October 5, 2004 - The Wall Street Journal (US)

Supreme Court Mulls Changing Sentencing Rules

By Laurie P. Cohen and Gary Fields, Staff Reporters

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Blakely News Archive

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 year.

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.

(Remainder snipped at the request of The Wall Street Journal)

Sounding Off

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 sentences.

"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 the argument.

"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

(Remainder snipped at the request of The Wall Street Journal)

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