- The Washington Times - Thursday, January 13, 2005

The Supreme Court yesterday voided mandatory federal sentencing guidelines, making them voluntary and saying U.S. judges could consult them before imposing penalties.

The court said juries, not judges, must determine any facts used to set the length of prison sentences.

More than 64,000 people are sentenced each year under the guidelines, and defense lawyers and others predicted yesterday a deluge of appeals from those who say they were wrongly sentenced.

The 124-page decision applied to the federal system a June high court ruling in a Washington state case that said juries — not judges — had to determine whether factors that can increase a defendant’s prison term are met in a given case.

In a complex set of three opinions, the court criticized but did not scrap the 17-year-old federal sentencing guidelines, instead making them voluntary, potentially opening the way for an avalanche of appeals of federal sentences.

“Chaos will reign in federal courthouses,” predicted Kirby Behre, a former federal prosecutor who practices law in Washington. He said judges must decide how to respond to the Supreme Court decision, and prosecutors and defense lawyers will argue over it.

Supporting a defendant’s right under the Sixth Amendment to have a jury and not a judge decide whether sentencing increases are warranted were Justices Antonin Scalia, Clarence Thomas, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

“It has been settled throughout our history that the Constitution protects every criminal defendant against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged,” Justice Stevens wrote. “It is equally clear that the Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.”

Dissenting were Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Anthony M. Kennedy and Stephen G. Breyer. However, Justice Ginsburg joined the four dissenters in voting to salvage the guidelines by making them nonmandatory — a point that legal scholars said yesterday could be taken to mean that judges have a free hand in sentencing.

Christopher Wray, assistant attorney general for the Justice Department’s Criminal Division, said the guidelines have ensured that “similar defendants who commit similar crimes receive similar sentences. Because the guidelines are now advisory, the risk increases that sentences across the country will become wildly inconsistent.”

Justice Breyer, in a dissenting opinion, said he found “nothing in the Sixth Amendment that forbids a sentencing judge to determine the manner or way in which the offender carried out the crime of which he was convicted.

“Traditionally, federal law has looked to judges, not juries, to resolve disputes about sentencing facts,” he said.

“Ours, of course, is not the last word. The ball now lies in Congress’ court,” he added.

Justice Scalia predicted that having voluntary guidelines would “wreak havoc on federal district and appellate courts quite needlessly, and for the indefinite future.”

The justices declined to make the decision retroactive for all federal inmates, meaning it applies only to cases pending or in their first appeal.

Federal sentencing guidelines set rules for judges in deciding punishment for a defendant and attempt to reduce disparities among sentences for the same crime. The guidelines also mandate factors that can lead to stiffer or lighter sentences. Congress established the U.S. Sentencing Commission in 1984, which issued the guidelines that have bound federal judges since taking effect in 1987.

Sen. Arlen Specter, Pennsylvania Republican and chairman of the Senate Judiciary Committee, said the panel would begin working to “establish a sentencing method that will be appropriately tough on career criminals, fair and consistent with constitutional requirements.”

Sen. Patrick J. Leahy of Vermont, the committee’s ranking Democrat, said the court’s decision had “significant implications” on how to ensure a fair and constitutional process for sentencing thousands of defendants in the federal criminal justice system.

“Congress should resist the urge to rush in with quick fixes that would only generate more uncertainty and litigation and do nothing to protect public safety,” he said. “For now, the Supreme Court has fashioned a reasonable remedy that will allow courts to conduct business until Congress decides how to act.”

Barry Scheck, president of the National Association of Criminal Defense Lawyers (NACDL), said the ruling presented a “valuable opportunity to reform the federal sentencing system so as to better distinguish among defendants and use our criminal justice resources more wisely.”

“This opportunity must not be squandered. Congress must not react with a ‘quick fix’ and miss the chance to solve a lingering and serious national problem,” Mr. Scheck said.

Yesterday’s ruling came in two cases appealed by the Justice Department, which said the federal sentencing system was in disarray since the Supreme Court’s June ruling declaring unconstitutional similar sentencing guidelines in Washington state.

The cases involved sentences for drug-related convictions: A Wisconsin case involving Freddie J. Booker, who was charged with possessing and distributing 92.5 grams of crack cocaine, and a Maine case involving Ducan Fanfan, charged with conspiracy to distribute cocaine powder.

Under federal sentencing guidelines, the sentence authorized by the jury verdict in Booker’s drug case was 210 to 262 months, but at sentencing, the judge cited additional evidence and ordered a sentence of between 360 months and life.

In the Fanfan case, the maximum sentence authorized by the jury verdict under the guidelines was 78 months, but at sentencing, the judge cited additional facts authorizing a sentence of between 188 and 235 months.

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