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Published: Thursday, 1/13/2005

Judges get leeway on sentencing

FROM BLADE STAFF AND WIRE REPORTS

WASHINGTON - The Supreme Court yesterday transformed federal criminal sentencing by restoring to judges much of the discretion that Congress took away 21 years ago when it put sentencing guidelines in place and told judges to follow them.

The guidelines, intended to make sentences more uniform, should be treated as merely advisory to cure a constitutional deficiency in the system, the court held in an unusual two-part decision produced by two coalitions of justices.

In the first part, five justices declared that the current guidelines system violated defendants' rights to trial by jury by giving judges the power to make factual findings that increased sentences beyond the maximum that the jury's findings alone would have supported.

That portion of the opinion had been widely anticipated, growing directly out of a similar conclusion the same five justices - John Paul Stevens, Antonin Scalia, David H. Souter, Clarence Thomas, and Ruth Bader Ginsburg - reached last June in invalidating the sentencing guidelines system in the state of Washington.

The real question hanging over the case, which the court granted on an expedited basis over the summer and heard in October on the opening day of its new term, was how the justices would solve the problem.

So it was the second part of the decision - the remedy - that was the surprise and that, going forward, will shape the continuing debate over sentencing policy. With Justice Ginsburg joining the four justices who dissented from the first part - Stephen G. Breyer, Sandra Day O'Connor, Anthony M. Kennedy, and Chief Justice William H. Rehnquist - a separate coalition said the problem could be fixed if the guidelines were treated as discretionary rather than mandatory.

From now on, Justice Breyer said, writing for the majority in this portion of the decision, judges "must consult" the guidelines and "take them into account" in imposing sentences. But at the end of the day the guidelines will be advisory only, with sentences to be reviewed on appeal for "reasonableness."

Lawmakers and legal experts predicted that the court's decision would renew the struggle between Congress and the judiciary for control over sentencing.

The decision leaves many unanswered questions and much work for the federal courts of appeals. It is in the appeals courts that its real meaning will emerge, as those courts handle sentencing appeals and build a body of law evaluating the "reasonableness" of sentences.

The remedy devised by Justice Breyer's majority had not been proposed by any party, although the Justice Department suggested a form of advisory guidelines as a fallback position to its defense of the system's constitutionality. Christopher A. Wray, an assistant attorney general, said that the department was relieved to see the guidelines remain in place but concerned that sentencing disparities might increase now that they are no longer mandatory.

The decision, United States vs. Booker, had its roots in a series of disputed sentencing rulings that began with Apprendi vs. New Jersey in 2000. In a series of cases, the court has held that given the Sixth Amendment right to trial by jury, judges cannot impose sentences beyond the "prescribed statutory maximum" unless the facts supporting such an increase are found by a jury beyond a reasonable doubt.

The court made it clear in a Washington state case, Blakely vs. Washington, in June that under the Sixth Amendment any fact that increases a defendant's time in prison must be proved to a jury and that the top of an ordinary guideline range was the equivalent of a statutory maximum.

But if judges simply exercise their traditional sentencing discretion, advised by guidelines but not bound by them, the defendant's Sixth Amendment right is not denied, a conclusion on which all nine justices agreed yesterday.

The dispute on the court continued over how Congress would have chosen to proceed if it had known of the Sixth Amendment issue when it put the guidelines system in place in the Sentencing Reform Act of 1984. When the Supreme Court finds a statute unconstitutional, the court's next step is to see whether there is a solution consistent with the legislators' original intent.

Dissenting from the remedy portion of the ruling, Justice Stevens, with Justices Souter, Scalia, and Thomas, said in effect that the last thing Congress would have done would be to give judges back the power that the guidelines were intended to constrain.

Rather, the dissenters said, if the problem was a violation of the right to trial by jury, the solution also lay with the jury: to require prosecutors to make indictments more specific and to present to the jury any factor that would increase a sentence beyond the ordinary range. Justice Stevens said that in avoiding this solution and instead changing the nature of the guidelines themselves, it was "clear that the court's creative remedy is an exercise of legislative, rather than judicial, power," one that "violates the tradition of judicial restraint."

Toledo U.S. District Court Judge James Carr said the decision appears to have restored some of the discretion that was taken away, but it also kept in place the review of sentencing at the appellate level.

"It is my understanding, without having the chance to study the opinion, that the U.S. Supreme Court has held that federal sentencing guidelines are no longer mandatory. Rather, federal courts are to look to the sentencing guidelines for instruction and guidance rather than to be controlled by them," Judge Carr said.

"Perhaps most importantly, the procedure of appellate review of sentencing, which the guidelines first introduced, has been retained. The appellate courts therefore continue to play a significant role in assuring that wide deviation in sentences can be controlled if not avoided."

The high court's decision sent a buzz among local criminal defense attorneys, who according to Jeff Gamso, were offering different opinions on its implications.

"We are still trying to determine what impact this will have on the federal courts and the state courts," said Mr. Gamso, a Toledo defense attorney who represents clients in federal courts and the Ohio legal director with the American Civil Liberties Union.

U.S. Attorney David Bauer said he believed the decision would affect defendants whose sentences currently are being appealed and that retroactive cases would remain the same.

"Until everybody reads and digests it, I am not sure how it will change things," Mr. Bauer said.

The federal courts issue more than 60,000 criminal sentences each year, according to the Justice Department.

The likeliest short-term outcome, legal analysts said, is more litigation, as defendants seek to challenge sentences imposed under the previous system, and as some judges who have criticized the guidelines as too harsh test their new freedom by imposing lesser sentences where they think they are justified.

Blade Washington Bureau reporter Michael McGough contributed to this report.

Because of the uncertainty its Blakely ruling had created in the federal courts, the Supreme Court Oral argument on the Booker and Fanfan cases, which the court heard Oct. 4, 2004, on an expedited basis

On one hand, the right to a jury trial is vindicated, but on the other hand, in the remedy, it is undercut," said Jon Sands, a federal public defender in Arizona and chairman of the Federal Defender Sentencing Guidelines Committee.

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