- The Washington Times - Monday, August 2, 2004

The Supreme Court yesterday said it would consider the constitutionality of 20-year-old federal sentencing guidelines used for 64,000 convicted criminals each year at a fast-track hearing set for the first day the justices return from summer recess in October.

In a brief order, the high court set an Oct. 4 hearing date for two cases appealed by the Justice Department, which argued that the federal system was in disarray since the Supreme Court’s June 24 ruling that declared unconstitutional similar sentencing guidelines in Washington state.

In June, the high court ruled 5-4 that the facts necessary for a sentencing increase under Washington state law from the normal sentencing range must be proved to a jury and not decided by a judge. The court said the Constitution guarantees criminal defendants the right to be judged under a “beyond a reasonable doubt” standard.

Justice Antonin Scalia, writing for the majority, said the court was expressing no opinion on the federal sentencing guidelines, but Justice Sandra Day O’Connor said in the dissent that the ruling cast doubt about their constitutionality.

Federal sentencing guidelines set rules for judges in deciding punishment for a defendant and attempt to reduce disparities in sentences for the same crime. They also mandate factors that can lead to stiffer or lighter sentences. Congress established the U.S. Sentencing Commission in 1984, which issued guidelines that are binding on federal judges.

The two cases in question involve sentences for drug-related convictions: A Wisconsin case involving Freddie J. Booker, sentenced to 21 years and 10 months in prison on charges of possessing and distributing 92.5 grams of crack cocaine, and a Maine case involving Ducan Fanfan, sentenced to six years and six months on charges that he conspired to distribute cocaine powder.

A U.S. appeals court in Chicago overturned the Booker sentence, ruling 2-1 that a federal judge singularly decided the quantity of drugs involved and that Booker had obstructed justice. The appeals court said Booker was entitled to have those decisions made by a jury.

A Maine judge was prepared to impose a prison term of 15 to 16 years for Fanfan, as sought by prosecutors in the case, based in part on facts not part of the jury trial. But the judge instead sentenced him to a lesser term.

In arguments to the court, the Justice Department asked the Supreme Court to decide whether a defendant’s constitutional right to a trial was violated by imposition of an enhanced sentence under the guidelines, based on the judge’s determination of a fact that was not found by the jury or admitted by the defendant.

Department lawyers argued that the high court needed to decide whether that part, if found to be unconstitutional, can be severed from rest of the federal sentencing guidelines.

Acting Solicitor General Paul Clement said about 64,000 federal criminal defendants are sentenced each year under the guidelines. He said that since the Supreme Court ruling, federal courts have issued conflicting rulings on the constitutionality of the guidelines.

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