COURT DEEPENS SENTENCING DOUBTS

A riddle wrapped in a mystery inside an enigma might come close to
describing the uncertain aftermath of another controversial U.S.
Supreme Court ruling this week that governs how judges will now
sentence federal criminal defendants.

"I describe the latest ruling as making chaos out of confusion," said
Barbara Tombs, executive director of Minnesota's Sentencing Guidelines
Commission and someone frankly relieved that the latest decision won't
have that much of a significant effect -- at least so far -- on state
criminal cases.

The federal picture, however, is another story. And a political fight
in Washington, D.C., could result.

In a 5-to-4 ruling Wednesday, the nation's highest court concluded
that federal judges must now use the two-decade old federal sentencing
guidelines system as an advisory tool rather than a mandatory formula
for imposing prison terms.

The guidelines were created in response to a groundswell of protests
and criticism that judges had too much discretion and often imposed
vastly disparate sentences across the country and even in the same
courthouse for similar offenses. Under the system, defendants are
assessed points based on the severity of their offense and criminal
history. The points translate to a recommended minimum and maximum
range of prison length.

But some critics now contend the pendulum of discretion has swung too
far the other way. They argue the guidelines and an increase in
mandatory minimum laws, particularly those governing drug offenses,
handed prosecutors more say than judges in determining punishment or
prison lengths.

A ruling in a case last summer -- Blakely v. Washington -- concluded
that a jury, not a judge, should determine whether to hand down a
longer term beyond the maximum recommended under the guidelines.

In contrast, this week's ruling, United States v. Booker, appears to
give federal judges more leeway in determining a defendant's sentencing.

The court decided judges should consult the guidelines in determining
sentences -- but only on an advisory basis. Appeals courts must ensure
sentences are reasonable.

"Ours, of course, is not the last word. The ball now lies in Congress'
court," Justice Stephen Breyer wrote in one part of the ruling. The
decision did not spell out how judges should deal with defendants or
what options Congress has.

James Rosenbaum, the chief federal judge in Minnesota and a long-time
critic of mandatory minimum drug laws and the restrictiveness of the
guidelines structure, declined to go into details about his reaction
to the court's ruling.

"All I can say at this time is that it has put the word 'guideline'
back into the guidelines," Rosenbaum said.

Tombs and Richard Frase, a professor of criminal law at the University
of Minnesota, both predict a potentially intense political fight in
Congress along party lines that could either support or significantly
water down the ruling.

"If Congress doesn't like the voluntary guidelines, they can come up
with any other system they want," said Frase, who added there is a
current legislative amendment that seeks to curb or rein in "liberal,
activist judges."

"I didn't think they could make a mess messier, but they probably
did," Frase said.

Like most states, Minnesota adopted and made constitutional a similar
sentencing guideline structure that Tombs said is far more flexible
than the federal one. She noted that procedural changes -- having
juries officially decide a longer prison term and depart from state
guidelines -- are being proposed to account for the Blakely decision.

The impact of such a change probably would affect only a fraction of
state cases. A State Sentencing Guidelines Commission report released
in October estimated that 358 of 14,492 felony cases sentenced in 2003
could fall under the proposed changes. A majority of such cases
usually are settled in plea bargains that are not directly affected by
guidelines.