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July 7, 2004 - The Wall Street Journal (US)

Sentence Ruling Prompts Memo To Prosecutors

By Laurie P. Cohen

The Department of Justice is telling federal prosecutors to bring fresh indictments against certain defendants to guard against any impact from a recent Supreme Court decision involving sentencing rules.

Deputy Attorney General James Comey, in a July 2 memo, also instructed prosecutors to "immediately" seek waivers from all defendants who agree to plead guilty to bar them from later using the Supreme Court ruling as a basis to challenge their plea agreement.

The high court decision last month said that judges can't act alone to increase prison sentences based on facts that juries never consider or that defendants don't plead to. The ruling applied to state sentencings, and the Justice Department memo repeated the administration's stance that it doesn't apply to federal sentencing guidelines -- while at the same time instituting precautions intended to make sure the ruling won't result in lower sentences in federal cases.

The ambiguous position reflects the confusing stance the government took in March when it argued the case, called Blakely v. Washington, before the Supreme Court. In a brief supporting the state of Washington, the government said that while it believed that the case didn't apply to the federal system, it feared its effect could prove "impossibly cumbersome" for juries.

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

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