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Published: Tuesday, 8/3/2004

Justices to revisit sentencing rules

BY MICHAEL McGOUGH
BLADE WASHINGTON BUREAU

WASHINGTON - The U.S. Supreme Court announced yesterday that it will spend two hours of the first day of its next term dealing with the fallout from a decision in June that threw the federal sentencing system into what the Bush administration calls "deep uncertainty and disarray."

On Oct. 4, the justices will hear oral arguments in two drug cases that pose the question of whether sentencing guidelines used by federal judges are unconstitutional because they allow for additional prison time based on factors not proved to a jury beyond a reasonable doubt.

At issue are federal sentencing formulas that peg punishment on factors such as the amount of illegal drugs sold, the dollar size of a financial fraud, or the fact that the defendant used a gun in the commission of a crime.

Although they are called "guidelines," the sentences spelled out by the U.S. Sentencing Commission are more than suggestions. Under federal law, a judge "shall impose" a sentence specified in the guidelines "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into account by the Sentencing Commission in formulating the guidelines. "

On June 24, a 5-4 majority of the Supreme Court led by Justice Antonin Scalia overturned a Washington state judge's decision to increase from 53 to 90 months the sentence of a man who kidnapped his estranged wife because the defendant acted with "deliberate cruelty." Under the Constitution, Justice Scalia said, juries, not judges, must decide whether a defendant's conduct justifies a harsher penalty.

Although Justice Scalia noted that "the federal [sentencing] guidelines are not before us, and we express no opinion on them," dissenting Justice Sandra Day O'Connor warned that the ruling did indeed cast doubt on federal sentencing guidelines. She complained that under the logic of the decision "over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy."

Justice O'Connor's words have proved prophetic in the weeks since the court's decision in the case of Blakely vs. Washington. Several judges have concluded that the Blakely decision invalidates the federal sentencing guidelines. Others have reached a contrary conclusion. Still others have suggested that the guidelines might continue to serve an "advisory" function for judges.

Warning that the Blakely decision cast doubt on thousands of federal sentences, acting U.S. Solicitor General Paul Clement last month interrupted the justices' vacation to ask them to review two drug cases in which application of the Blakely ruling led to more lenient sentences than the defendants otherwise would have received.

Yesterday the justices agreed, though they spurned Mr. Clement's suggestion that they return from vacation early so that arguments could take place in September. The court did accept Mr. Clement's backup suggestion for arguments on Oct. 4. Even that schedule amounts to an unusual fast-tracking.

John Kramer, a professor at Penn State University who is a former staff director of the U.S. Sentencing Commission, said that the expedited consideration of the two cases suggests that the justices in the majority in Blakely didn't expect the ripple effect of the decision to come so fast.

"I think the court had to be a little surprised at the panic," Mr. Kramer said.

"My guess is that, because of the political fallout, the court will want to find some leverage for finding the federal guidelines constitutional."

Mr. Kramer noted that all it would take for such a holding would be the defection of one member of Justice Scalia's five-justice majority in Blakely.

When it hears oral arguments in October in the two drug cases, the justices will consider at least two questions: whether the Blakely decision applies to the federal guidelines and, if so, whether some elements of the federal sentencing system could be salvaged by being "severed" from the unconstitutional provisions. For example, existing guidelines might be retained if the conduct on which they were based was proved to the satisfaction of the jury.

Contact Michael McGough at:

mmcgough@nationalpress.com

or 202-662-7025.



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