COURT GIVES JUDGES GREATER SENTENCING FLEXIBILITY

WASHINGTON -- The Supreme Court ruled Wednesday that judges are free to
mete out prison terms that are shorter or longer than those called for
under federal sentencing guidelines.

The current sentencing rules can stand, the justices said, as long as they
are considered "advisory," not mandatory.

The decision, coming after recent Supreme Court opinions that had cast
doubt on the future of the guidelines, was seen as a victory for the
judiciary and a setback for lawmakers who would like to limit judges'
sentencing authority.

By basically preserving the current system, Wednesday's ruling is not
likely to have a broad impact on criminals serving federal terms or those
awaiting sentence. It is unclear what effect it will have on future sentencing.

"There are going to be a lot of disappointed criminals in federal prison
today," said Kent Scheidegger of the Criminal Justice Legal Foundation, a
Sacramento, Calif.-based organization that supports the rights of crime
victims.

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.

But critics said the system gave too much clout to judges and prosecutors.
And until Wednesday, the Supreme Court majority seemed to agree.

In June, a 5-4 majority struck down the sentencing system used in
Washington state courts, saying it gave judges too much power. The court
said a defendant's right to a jury trial included the right to have the key
sentencing factors decided by a jury, not by the judge.

Justices Antonin Scalia, John Paul Stevens, David H. Souter, Clarence
Thomas and Ruth Bader Ginsburg formed the majority in that decision.
Justice Stephen G. Breyer issued the dissent, warning that the Supreme
Court would wreak havoc if it followed the same approach and struck down as
unconstitutional the nearly identical federal sentencing system. More than
60,000 federal criminals are sentenced each year and, in theory, a similar
ruling involving the federal bench could have upset all those prison terms.

Instead, a new 5-4 majority -- with Ginsburg this time joining Breyer,
Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and
Sandra Day O'Conner -- on Wednesday found a way to save the federal
sentencing system by tweaking it slightly.

"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; as a Senate Judiciary Committee lawyer, he
had helped to craft the federal sentencing rules.

"Without its 'mandatory' provision and related language, the (Sentencing
Reform) Act remains consistent with Congress's basic sentencing intent,"
Breyer wrote.

Ginsburg did not explain her decision in the case.

In his dissent, Scalia called the court's approach "wonderfully ironic: In
order to rescue from nullification a statutory scheme designed to eliminate
discretionary sentencing (by judges), it discards the provisions that
eliminate discretionary sentencing."

For months, judges, prosecutors and defense lawyers across the United
States had been expecting the federal guidelines to be overturned. On
Wednesday afternoon, Justice Department prosecutors sounded both relieved
and dismayed.

"There is some good and some bad," Assistant Attorney General Christopher
Wray, the chief of the criminal division, said. "Although we are pleased
that the Supreme Court did not find the federal sentencing guidelines to be
unconstitutional, we're disappointed the decision made the guidelines
advisory in nature."

Tim Lynch of the libertarian Cato Institute praised the ruling, saying that
judges now would have more freedom in sentencing.

"The ... ruling will have the effect of shifting power back to the
judiciary. The net effect will be an improvement in the administration of
justice because we are more likely to find wisdom and prudence from
impartial judges than from partial prosecutors," Lynch said.

States with mandatory sentencing guidelines could overcome the problem
presented by the Supreme Court's June ruling by doing what the Supreme
Court did Wednesday, simply say the rules are advisory, not mandatory.

In his opinion, Breyer noted that Congress could act to change the system.
"The ball lies in Congress' court," he wrote. But it is not clear lawmakers
can do much, since the court's opinion Wednesday also said that they may
not impose a mandatory system of sentencing rules on judges.