DECISION ROCKED JUDICIARY, RENEWED DEBATE ON DRUG WAR

In sending Daniel E. Comarovschi to federal prison for two years for
growing and selling pot from his Charlottesville home, a frustrated
Judge James H. Michael Jr. denounced the federal guidelines that
prevented him from giving the nurse a lighter sentence.

"If this were a preguidelines sentence, it would have never carried
with it what this guideline sentence does carry," Michael said in
September. "This is a case, as the court sees it, considering all the
background, that cries out for a period of probation."

In January, everything changed.

Those in legal circles refer to it simply as "Booker." In its Jan. 12
rulings in United States v. Booker, the U.S. Supreme Court relegated
once-mandatory sentencing to advisory status, restoring discretion in
sentencing to judges such as Michael for the first time in 17 years.

The landmark decision has rocked the federal judiciary - known for its
harsh mandatory penalties, particularly in drug crimes - and has
reignited the debate over the federal government's costly prosecution
of the war on drugs.

Now, judges, defense lawyers and prosecutors must decipher the
implication Booker has for the tens of thousands of criminal cases
across the country, and wait to see what move the majority
conservative Congress will make in response. Many see it as one of the
most politically charged judicial decisions lawmakers have faced in
years.

Congress enacted the guidelines - the legal framework of rules for
sentencing convicted federal offenders - in 1987 as a response to what
many saw as unequal sentences for the same crime in different parts of
the country.

Alan Silber, who is a member of the board of directors of the National
Association of Criminal Defense Lawyers, an advocate of drug-law
reform and Comarovschi's lawyer, countered that uniformity is
"actually unfair."

"The fundamental fallacy of the rhetoric being used is the notion that
the same sentence for the same crime is fair," he said.

One courthouse source, prohibited from speaking publicly about the
Booker decision, opined that with sentencing guidelines, the justice
system ensures equal treatment under the law of wealthy criminals and
the poorest defendants.

"Without guidelines, you could have [Enron finance chief] Andrew
Fastow pleading guilty and getting 10 years, or Martha Stewart not
having gone to prison at all," the source said. "Basically, you'd see
rich people not having to go to jail."

While mandatory guidelines have achieved uniformity, they have been
criticized because of their penalties, which many consider overly
harsh. Booker now allows appeals courts to explore the
"reasonableness" in guidelines sentences, according to University of
Virginia School of Law professor Stephen F. Smith.

"As such, sentencing judges should now be free to impose sentences
other than those that would've been required under the guidelines, and
appellate courts should uphold those sentences, even if lower than the
guidelines sentence, as long as they're not 'unreasonable,'" Smith
said. "If that happens, then Booker will have solved one of the key
problems with the federal sentencing guidelines: their excessive
rigidity and severity."

Though the sentences are harsh in federal court as compared with those
in state courts, the federal government has helped solve many violent
crimes, according to Charlottesville Commonwealth's Attorney Dave Chapman.

"Many people disagree with how severe the sentences are in federal
court, but there is no question in my mind that the community has
benefited," Chapman said. "Federal court has really worked well for
us, but it comes at a very high price that we should never forget."

UVa's Smith predicted that without the leverage of tough, mandatory
sentencing guidelines, federal prosecutors must cut suspects better
deals in plea agreements, which is how nearly 95 percent of federal
criminal cases conclude.

Some have predicted fewer plea agreements in a post-Booker world, amid
other dire repercussions. In a New York Sun article, Assistant
Attorney General Christopher Wray anticipated "wildly inconsistent"
sentencing across the country.

Despite such pessimistic predictions, judges in the Western District
of Virginia, which includes the Charlottesville area, are sentencing
within or below the sentencing guidelines, according to local
courthouse observers.

From his office off of the Downtown Mall, defense lawyer J. Lloyd
Snook III argued that judges should be ultimately responsible for
punishment, not prosecutors, who wielded much more power before the
Booker decision. Judges will again have to develop their sentencing
philosophies.

"They're getting paid 150,000 bucks a year to make tough decisions,"
Snook said of federal jurists.

Judge's Discretion

In the dense federal guidelines manual, hundreds of pages of rules and
a complex table of numbers are used to determine the sentencing range
based on criminal history.

Since the Booker ruling, judges in federal court have used the
guidelines as suggestion, not dictation. One local lawyer said that
the recent changes would rightfully make sentences a question of
people's lives, not of arithmetic.

Though the Supreme Court has directed judges to take the guidelines
into consideration when imposing sentences, judges can, and have,
strayed from those once-mandated terms of imprisonment.

In sentencing a man convicted in a drug conspiracy in Abingdon this
month, Judge James P. Jones, chief judge for the Western District,
explained that he chose to impose a sentence that departed downward
from sentencing guidelines because he disagreed with the guidelines'
characterization of the defendant as a "career offender."

Lewis Gray Naylor Jr. had nine breaking and entering convictions on
his record before he celebrated his 17th birthday. Judge Jones said
Naylor's young age when he committed the break-ins undercuts the need
to rely on those convictions to lengthen his sentence.

"Juveniles have an underdeveloped sense of responsibility, are more
vulnerable to negative influences of peer pressure and their character
is not as well formed as an adult's," Jones wrote.

Watching and Waiting

In the days that followed the Booker decision, lawyers around town
carried around thick printouts of the ruling and read carefully
through its analysis during breaks from court.

In subsequent weeks, those attorneys have shared strategies and
information about how judges around the country are handling not only
new sentencings, but cases on appeal because of Booker. Amid online
discussions and e-mails, the lawyers continue to watch and wait.

Meanwhile, federal prosecutors, with direction from the Justice
Department, carry on with their immense workload. So what is the word
from Washington?

"It's been pretty straightforward. The court recognizes that the
guidelines are advisory," said John Brownlee, U.S. attorney for the
Western District of Virginia. "We're kind of carrying on as directed.
At this point we just continue to do what we're doing.

"So far, from what I can tell, the sentences, generally speaking, have
been in the guidelines. Some have gone outside. ? We're blessed with
very strong judges in this district, who, by and large, are
law-and-order judges."Brownlee declined to reveal his own take on the
Booker decision.

"My responsibility is to follow the law and to make sure the lawyers
in my office are up to speed and understand the law no matter what
Congress or the courts will do," he said. "The feelings of one lawyer
aren't relevant."