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Sentencing policy on trial

BOSTON — BOSTON - From his chambers overlooking Boston Harbor, Judge William G. Young has watched with barely constrained delight the fallout from a Supreme Court ruling that has cast doubt on sentencing practices across the country.

Less than a week before the high court delivered its unexpected ruling, Young, the chief U.S. District Court judge for Massachusetts, unleashed his own blunt critique of the way punishment is handed out. He declared federal sentencing guidelines unconstitutional in a scathing, 177-page decision that could have made him a lonely figure in the judiciary.

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Instead, Young has found plenty of company.

In the two weeks since the high court's decision in the case of Blakely vs. Washington that juries, not judges, must decide whether aggravating factors exist that could increase criminal sentences, at least four more federal judges have held that the current federal sentencing guidelines are unconstitutional.

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Other judges have reduced jail time for convicted criminals and are bracing for appeals by the approximately 270,000 inmates jailed under the kind of sentencing schedules now under scrutiny. The Senate Judiciary Committee has scheduled a hearing Tuesday to discuss the implications. Prosecutors are rethinking how they bring charges, and legal scholars say the Supreme Court might have to return from its summer recess to hear an appeal on the issue.

Amid all the legal hand-wringing, Boston's Young views the current turmoil as a good thing.

"Blakely puts American juries squarely between the accused and the jailhouse door, and that is right," he said in an interview. "This idea that somehow a judge is going to know more than 12 people of the community - all of my professional experience says that is not the case."

Nominated by then-President Ronald Reagan, Young, 64, has served 19 years on the federal bench in Massachusetts. Instead of the customary portraits of judges hanging on his courtroom walls, he has ship portraits painted by his father. He also has a track record for rippling the waters.

'Diminishing' the jury

While presiding over the high-profile case against Richard C. Reid, who was accused of trying to detonate a bomb in his shoes on a trans-Atlantic flight, Young leveled criticism at the government's creation of military tribunals for terrorism suspects, saying they had "the effect of diminishing the American jury, once the central feature of American justice."

Last summer, Young penned an open letter to federal judges that again raised concerns about the gradually vanishing jury trial. Writing that "unwelcome truths are nevertheless true," Young said the jury system was withering away and then asked his colleagues across the country: "Do you care?"

In his decision released just before the Blakely ruling, Young took the rare step of asking an appeals court to return a series of Boston drug cases to him for re-sentencing. Part of Young's rationale - that the sentences were unconstitutional because he had factored in some details never put before a jury - closely forecast what the Supreme Court would say the following week.

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Allowing judges to weigh so-called relevant conduct at sentencings, Young wrote, has meant "the routine sentencing of offenders on the basis of crimes with which they have never been charged, the commission of which they deny, without any evidence ever having been proffered against them."

In its 5-4 decision in Blakely, the Supreme Court said any factor that could increase a sentence must be proved to a jury beyond a reasonable doubt.

The high court reversed the 90-month sentence of Ralph H. Blakely Jr., who was convicted of kidnapping his estranged wife in 1998. Under state sentencing guidelines in Washington, Blakely would have faced a maximum sentence of 53 months for the crime, but a state judge added 37 months after finding at a sentencing hearing that Blakely had acted with "deliberate cruelty."

Writing the Supreme Court's majority opinion, Justice Antonin Scalia said the country's founders "would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the state should suffer the modest inconvenience of submitting its accusation to ... twelve of his equals and neighbors, rather than a lone employee of the state."

The U.S. government and at least 10 states adopted sentencing guidelines over the past two decades as part of an effort to ensure uniformity and fairness in criminal punishment. In general, the guidelines create a grid system for handing out punishment - based on factors such as a defendant's acceptance of responsibility, his level of cooperation with authorities and criminal background.

Guideline systems usually allow, or instruct, judges to impose longer sentences based on factors such as the amount of narcotics involved in a drug case or the severity of the crime. Still, many judges have long complained about the guidelines leaving them little room to impose their own judgment in sentencing.

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In Blakely, the majority opinion did not rule guideline schemes unconstitutional or address the federal system. But in an impassioned dissent, Justice Sandra Day O'Connor said that did not matter.

Repercussions

"Over 20 years of sentencing reform are all but lost and tens of thousands of criminal judgments are in jeopardy," O'Connor wrote. "The court ignores the havoc it is about to wreak on trial courts across the country."

Her prediction has been quickly realized. Within days, U.S. District Judge Paul G. Cassell in Utah said the court's decision rendered the federal sentencing guidelines unconstitutional and forced him to reduce the possible prison sentence of a convicted child pornographer. Other rulings and resentencings followed across the country.

Cassell's decision after the Blakely case, like Young's before, is not binding on other judges, and in a 40-page written opinion Cassell said he took "no joy" in his finding. He also warned that the high court's decision in Blakely could lead Congress to simply create a system of "tough fixed sentences across the board - an outcome that will protect neither the interests of criminal defendants, nor, paradoxically, the very right to a jury trial that Blakely sought to protect."

Young demurs on the question of what might happen next in Congress. At the trial court level, he said, the best hope for federal judges is simply to be persuasive in their writing.

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Court watchers say it is unclear whether the decision could lead to more jury trials. Nancy J. King, a law professor at Vanderbilt University who studies jury issues, said the ruling did not inevitably grant more power to juries.

"I don't think that's necessarily the result, because ours is a system of settlement, with the jury trial only as a default," King said.

One possibility is simply more plea bargains, as prosecutors produce more detailed charging documents and extend the negotiating process, said Douglas Berman, a law professor at Ohio State University who has tracked the fallout from Blakely in an online blog.

"Is it worth it to safeguard this right if the practical result is you ultimately undermine it?" Berman said.

In Boston, Young was more optimistic about the decision restoring balance between the government and accused defendants. His pre-Blakely opinion had centered on the sentences of five defendants convicted on drug charges and focused on concerns about whether the sentencing guidelines put too much power in the hands of prosecutors.

In one instance, Young in March had sentenced Richard Green, a drug dealer in Boston's public housing projects, to 20 years in prison after relying on evidence about guns and other drugs that the jury in Green's trial never heard.

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The correct sentence, Young later determined, should have been four years. He wrote that "there can be little doubt that the requirement of proof beyond a reasonable doubt and the right to have a jury determine facts that expose a defendant to greater punishment are among the surest guarantees that an individual will not be deprived of her liberty in error."


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