JUDGES GET LEEWAY ON SENTENCING

Supreme Court Rejects Rules Imposing Mandatory Penalties

WASHINGTON -- The Supreme Court abandoned nearly two decades of
federal sentencing practice Wednesday, saying judges no longer have to
follow the complex system of guidelines that Congress designed in the
1980s to make jail terms tougher and more uniform.

In a 5-4 decision, Justice John Paul Stevens, writing for the
majority, found that the federal guidelines ran afoul of the court's
2004 ruling that said the Sixth Amendment requires juries, not judges,
to determine facts that can lengthen sentences.

But rather than eliminate the guidelines or let lower courts work out
how to apply the 2004 ruling within the guidelines, the court, in a
separate 5-4 decision written by Justice Stephen Breyer, prescribed a
sweeping fix of its own.

The guidelines, it said, will be used in an "advisory" manner to help
federal judges come up with "reasonable" sentences.

The court said that solves the constitutional problems with the
guidelines and preserves Congress' intent in adopting the rules.

John D. Tinder, a U.S. District Court judge for the Southern District
of Indiana, said the ruling give judges more discretion than they've
had in 18 years.

"In some respects this will be welcome," said Tinder, who cautioned
that he had only browsed the ruling.

But criminal justice experts said Wednesday that the rulings could
also bring more confusion to the process.

"The court, by fiat or constitutional interpretation, has now created
a system of advisory guidelines, so what we have now is essentially
unconstrained judicial sentencing," said Frank Bowman, an Indiana
University law professor and a former federal prosecutor.

Bowman noted that many federal judges have complained that the
guidelines left them too little flexibility in determining sentences,
and Wednesday's ruling might seem to be what they wanted.

"But I think they'll come to regret what has happened here, because
it's something that's far more likely to provoke a response from the
Department of Justice and Congress that they'll find
unpleasant."

It's unclear, Bowman and others said, whether Wednesday's rulings
offer most of the 170,000 current federal inmates a chance to appeal
their sentences. Most agree that nearly all inmates are likely to
think they have appeals, inspiring thousands to file.

Craig Margolis, a former federal prosecutor and white-collar criminal
defense expert for the Vinson & Elkins law firm doubted that federal
sentencing practices would radically change.

"Many of the judges currently on the bench are comfortable with the
guidelines, and they will likely follow them anyway," Margolis said.

Congress may weigh in

Congress also may craft its own solution, and the justices seemed to
expect that.

"Ours, of course, is not the last word. The ball now lies in Congress'
court," Breyer wrote in one part of the ruling. "The national
legislature is equipped to devise and install, long-term, the
sentencing system, compatible with the Constitution, that Congress
judges best for the federal system of justice."

Assistant Attorney General Christopher Wray, who heads the Justice
Department's Criminal Division, said government officials were
encouraged that the court didn't strike down the guidelines but
disappointed that they weren't sustained as mandatory.

"To the extent that the guidelines are now advisory, . . . the risk
increases that sentences across the country will become wildly
inconsistent," Wray said.

The guidelines were considered mandatory when they were adopted in
1987 in an effort to ensure that defendants received similar sentences
for similar crimes, whether they came before a conservative judge in
Dallas or a liberal judge in Boston.

Judges were instructed that certain factors called for a higher or
lower prison term. For example, if a drug dealer was shown to have had
a huge quantity of drugs and money in his house and been part of a
larger operation, sentencing rules called for the judge to add extra
years to his prison term. So a dealer facing five years in prison
based on the jury's verdict could be sentenced to 25 years or more
based on sentencing factors cited by the judge.

Critics said the system gave too much clout to judges and
prosecutors.

The decision was largely expected. In 2000, the court ruled it was
unconstitutional to sentence an offender based on facts not determined
by a jury. Last June, for virtually the same constitutional reasons,
the court struck down sentencing guidelines in the state of Washington
that had been modeled after the federal system. Justice Sandra Day
O'Conner, who dissented in that case, warned that the federal
guidelines would likely be found unconstitutional.

Breyer, who also issued a dissent, warned that the Supreme Court would
wreak havoc if it struck down the federal sentencing system. More than
60,000 federal criminals are sentenced each year.

On Wednesday, a new 5-4 majority --with Ruth Bader Ginsburg joining
Breyer, Chief Justice William H. Rehnquist and Justices Anthony M.
Kennedy and O'Conner -- found a way to save the federal sentencing
system by tweaking it.

"The effect of our (decision) is that the federal sentencing guideline
system will remain in existence, not as a mandatory system, but as an
advisory system," Breyer wrote.

"This ruling was bittersweet for defendants," said Arizona federal
public defender Jon Sands, chairman of a committee of public defenders
that focuses on sentencing guidelines.

"The Sixth Amendment was vindicated, but then it was undercut again,
all in one day."

Some defense lawyers worry that Wednesday's decision could return the
nation to the days when judges in different parts of the country
handed out radically different punishments.

The ruling could produce some "law-and-order" circuits where judges
throw maximum sentences at any eligible defendant and others where
more lenient judges offer parole to criminals.

"My biggest concern is that you'll have exactly the kind of
judge-by-judge, circuit-by-circuit variation that the guidelines were
intended to reduce," said Doug Berman, a law professor at the Moritz
College of Law at Ohio State University.

Tinder of Indiana said judges generally welcome as much discretion as
is available but sometimes, he said, judges take comfort in knowing
that the law demands specific sentences.