High court upsets rules on sentencing

THE BALTIMORE SUN

In a ruling that drastically overhauls the way the nation's federal defendants are sentenced, the U.S. Supreme Court found the current system unconstitutional yesterday and said judges will no longer be required to follow the 17-year-old federal sentencing guidelines.

In its 5-4 ruling, the court specifically criticized a routine practice under the system, in which a judge may increase a defendant's prison time based on evidence a jury has not considered - the amount of drugs a defendant possessed, for instance, or whether he was the ringleader of a gang.

The court ruled that juries should decide these factors.

The decision opens the door for potential sentence rollbacks in untold numbers of cases currently on appeal. It was unclear whether the ruling could be applied to reopen old cases.

"It's huge," said Larry Nathans, a Baltimore lawyer who chairs an American Bar Association panel on federal sentencing. "It dramatically changes the way people who commit federal crimes are sentenced."

The decision does not entirely scrap the oft-debated guidelines. "It requires a sentencing court to consider Guidelines ranges ... but it permits the court to tailor the sentence in light of other statutory concerns as well," Justice Stephen G. Breyer wrote for the majority in the opinion.

It is a position judges have advocated for years. Ever since the guidelines went into effect, many federal judges have complained that rather than create fairness and uniformity, the guidelines have often forced them to impose nonsensical prison terms.

"We all need time to read and reflect on the full opinion," said Maryland U.S. District Judge Catherine C. Blake. "It appears, however, that the Supreme Court has left in place a system that will truly guide a judge's discretion at sentencing without mandating what might in an individual case be an unjust result."

Defense attorneys also praised the decision, saying it will rebalance a system they believe has tilted too far in favor of the prosecution. But the U.S. Department of Justice said it was "disappointed that the decision made the guidelines advisory in nature."

Assistant U.S. Attorney General Christopher A. Wray said in a statement yesterday that the mandatory guidelines correctly limited judicial discretion and assured "similar treatment of defendants with similar criminal records who committed similar criminal conduct."

"In addition, the guidelines allow judges to target longer sentences to especially dangerous or recidivist criminals," he said.

Additional evidence

Under the old system, prosecutors could introduce new evidence at sentencing that the judge would consider by a preponderance of the evidence - a lower standard than the jury's "beyond a reasonable doubt."

If the judge accepted that evidence, the sentencing guidelines would often require a longer prison term for the defendant, sometimes years more.

That is what happened to Freddie Booker, one of the defendants at the heart of the court's decision yesterday.

A jury in Wisconsin found Booker guilty of possession with intent to distribute at least 50 grams of crack cocaine. The sentencing guidelines in his case required the judge to set a maximum "base" sentence of 21 years and 10 months in prison.

But at sentencing, the judge concluded that Booker had possessed an additional 566 grams of crack and was guilty of obstructing justice. That meant that, because of the guidelines, the judge had to sentence him to at least 30 years in prison.

In United States v. Booker and the companion case United States v. Fanfan, the Supreme Court said Booker's sentence violated the Sixth Amendment, which includes the right to a trial by jury. Any fact that could increase time in prison by almost a decade should be decided by one's peers beyond a reasonable doubt, it said.

Fairness over speed

"We recognize, as we did [in earlier cases], that in some cases jury fact-finding may impair the most expedient and efficient sentencing of defendants," Justice John Paul Stevens wrote for the majority in one part of the opinion. "But the interest in fairness and reliability protected by the right to a jury trial - a common-law right that defendants enjoyed for centuries and that is now enshrined in the Sixth Amendment - has always outweighed the interest in concluding trials swiftly."

The decision was not unexpected. In some recent cases, the court has tried to combat what it described as an erosion of the right to a jury trial.

Last summer, the court ruled that Washington state's sentencing system violated defendant Ralph Blakely Jr.'s right to a trial by jury because it allowed his sentencing judge to make findings on some issues that were not presented to a jury.

Blakely, convicted of kidnapping his estranged wife in 1998, pleaded guilty and faced a maximum of 53 months for the crime, but a state judge added 37 months after finding at a sentencing hearing that Blakely acted with "deliberate cruelty."

Since that ruling, federal judges and lawyers have been waiting for the court to clarify whether the decision also applied to the similar federal sentencing system. Many judges have issued two sentences for defendants - one as if the guidelines were mandatory, one as if they were simply guides. In some jurisdictions, judges have postponed sentencings in order to see what the Supreme Court would do with the Booker case.

Yesterday's decision gave clear guidance to the lower courts on how to proceed, said Yale law professor Kate Stith:

"The court did its main job, which is to state what the law is in a clear enough way to let the lower courts do their job."

But the longer-term impact is less clear. "This decision will likely set off a national debate in Congress and across the country about how to sentence criminals," said Jesse Rutledge, spokesman for Justice at Stake, an organization that works for an independent judiciary. "The danger is that Congress will use this as an opportunity to grab for the gavel."

He and others worry that Congress will try to pass additional mandatory minimum-sentence legislation, which the judiciary has criticized as unwise and unfair.

"I hope Congress will not act precipitously in an effort to curtail judicial discretion and instead will direct the U.S. Sentencing Commission to monitor and report on judges' sentencing decisions over the next year or two," said Maryland U.S. Magistrate Judge James K. Bredar. "Americans can and should watch their courts closely - if they do they'll see that federal judges, acting in this new era of advisory and non-mandatory guidelines, will sentence intelligently and responsibly, and in a manner that justifies the trust placed in them by the community."

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