SUPREMES TAKE A SWIPE AT MANDATORY MINIMUMS

On Jan. 12, in a rare split ruling, the U.S. Supreme Court declared
unconstitutional the federal sentencing guideline scheme enacted by
Congress in the mid-Eighties in response to an increase in drug crimes,
ruling that as currently applied the guidelines violate the Sixth Amendment
right to a jury trial, and opining that the most advisable remedy is to
transform the guidelines from a mandatory to an advisory tool for use by
judges.

Last summer the Supremes agreed to accept and expedite two appeals brought
to them by the federal government, which asked the judges to determine
whether the Federal Sentencing Guidelines, written into the Sentencing
Reform Act of 1984, would be affected by the court's June 24 decision to
toss similar guidelines at use in Washington State. In that case, styled
Blakely v. Washington, the court ruled 5-4 (with the court's conservative
and liberal judges joining together against the middle) that the Washington
sentencing guidelines were unconstitutional because they forced judges to
increase jail time for a defendant based on a bench finding of facts never
presented to a jury, a violation of the Sixth Amendment. On its face, the
Blakely ruling only affected state sentencing schemes, but it threw the
feds into confusion because federal courts routinely decide sentences based
on evidence never presented to a jury.

Almost immediately, two federal drug prosecutions were called into
question. In those cases, U.S. v. Booker and U.S. v. Fanfan, the defendants
were found guilty on federal drug charges by jurors (for possession and
intent to distribute various amounts of cocaine and crack), but were facing
harsher sentences based on judicial determination that each had actually
been responsible for trafficking a greater quantity of dope than determined
by jurors. Although the FSGs called for enhanced sentences for both Booker
and Fanfan, the presiding judges in those cases A- citing the Blakely
decision A- declined to impose the harsher sentences. In a tizzy, the feds
appealed both cases to the high court.

On Wednesday, in the same 5-4 split as in Blakely, the court ruled that the
FSGs violate the constitutional right to a jury trial. The so-called
"guidelines" are in fact mandatory, Justice John Paul Stevens opined for
the majority in the first part of the ruling, and therefore are
"incompatible" with the guaranteed right to a jury trial. The guidelines
"as written A... are not advisory; they are mandatory and binding on all
judges," Stevens wrote. While passage of the sentencing scheme "reflected
the growing and wholly justified legislative concern about the
proliferation and variety of drug crimes," Stevens wrote, the effect of the
enhanced sentencing ranges "was to increase the judge's power and to
diminish that of the jury." As a result, "[a]s the enhancements became
greater, the jury's finding of the underlying crime became less
significant," he wrote. "And the enhancements became very serious indeed."

While the majority A- Stevens, joined by Justices Antonin Scalia, Clarence
Thomas, David Souter, and Ruth Bader Ginsburg A- tossed the mandatory
"guideline" scheme, in a seemingly contradictory second-part ruling,
Ginsburg jumped ship to form a majority with Chief Justice William
Rehnquist and Justice Sandra Day O'Connor, Anthony Kennedy, and Stephen
Breyer to provide a remedy for the situation, which at least partially
restores the sentencing scheme ditched by the majority in the Stevens
ruling. In part two, Breyer wrote for the majority that the only way to
remedy the FSG part one ruling is to say that the sentencing guidelines can
still be used if they're voluntary and not mandatory. Thus, a jury's
finding can be enhanced at sentencing through judicial discretion. The SRA
provision that makes the guidelines mandatory must be "severed and
excised," Breyer wrote, and by doing that, the FSGs become "effectively
advisory." That way judges still have additional latitude in sentencing,
maintaining the FSGs as "advisory [for judges], while maintaining a strong
connection between the sentence imposed and the offender's real conduct,"
which would achieve the uniformity and consistency in sentencing that
Congress intended with passage of the SRA. In effect, the Breyer majority
opined that judges should still have authority to take guidelines for
upward sentencing into account, but that those discretionary sentences
could be reversed on appeal upon a determination that the sentence was
unreasonable.

Naturally, Stevens authored a dissent (which Souter and Scalia joined in
part), blasting the Breyer majority for undercutting the Sixth Amendment
holding from part one, calling the Breyer opinion an "extraordinary
exercise of authority." Scalia was even more incensed, opining that "[o]nly
in Wonderland" would such a scheme as that devised by the Breyer majority
make any sense. "The worst feature of the scheme is that no one knows A-
and perhaps no one is meant to know A- how advisory Guidelines and
'unreasonableness' review will function in practice," he wrote.