JUDGE APPLAUDS SENTENCING RULING

For years, federal sentencing guidelines were a great big oxymoron.

The guidelines are a set of rules, rivaling the federal tax code in
complexity, that determine the potential sentence for people convicted in
federal courts.

They weren't guidelines, though. The guidelines served to calculate
mandatory minimum and maximum sentences, with a narrow range between, that
judges were bound to follow.

Now, the U.S. Supreme Court has ruled the system unconstitutional, and made
the guidelines advisory, rather than mandatory.

Judges have grumbled about the guidelines for years, but judges at the U.S.
District Court for New Hampshire in Concord declined to comment on this
week's ruling in U.S. v. Booker, Court Clerk James Starr said Friday.

Judge William Young, chief justice of the U.S. District Court in
Massachusetts, unabashedly applauded the decision.

"What this does is make truthful the rhetoric that's being used. It renders
the guidelines guidelines, instead of a constricting, mandatory framework
that really allows the prosecutor to determine sentences," Young said.

"We say they were guidelines, but they weren't guidelines at all," Young said.

"I'm much in favor of it," he said of the decision. "I emphatically believe
it accurately describes the requirements of the Sixth Amendment of the U.S.
Constitution . . . that it is a jury of the people that stands between the
prosecutor and the jailhouse door."

The ruling affects all pending and future criminal cases, but it doesn't
apply to cases that have already been resolved, so the wave of appeals and
motions for reconsideration shouldn't be too overwhelming, Young said.

"People who predict chaos . . . are just wrong," Young said.

"The day the opinion came out, that afternoon, I sentenced someone. It's
effective immediately," Young said. "On that particular case, it had no
effect."

The case involved a forgery charge, in which both the defendant and
prosecutors agreed how much money was taken, Young said.

Discretion may become a bigger factor in more complicated cases, but Young
said he doubts there will be any large overall increases or decreases in
the length of sentences handed down by federal judges. Judges are still
required to consider the guidelines, even if they don't follow them
exactly, Young noted.

New Hampshire's chief federal prosecutor, U.S. Attorney Thomas Colantuono,
also predicted it won't create any immediate or drastic changes in sentencing.

"In this district, I think it will not have a tremendous impact. I think
cases will be decided in a fairly similar manner," Colantuono said. "We're
not worried about it. We'll deal with the ruling, and we have great
confidence (in the courts).

"Judges will have more discretion," but so will lawyers, he said. Lawyers
on both sides will be able to make more creative arguments, for greater or
lesser terms.

The U.S. Supreme Court already had changed the sentencing rules
dramatically in recent years in its decisions in the Blakely and Apprendi
cases, holding that any factors or facts that determine a person's sentence
must be charged, and either admitted or proven beyond reasonable doubt.

"The day the Blakely decision came out . . . everybody in the courtroom had
a copy of that case. Everybody," federal defender Jonathan Saxe said in an
interview at the time. "It definitely shook the foundations."

Saxe argued the sentencing guidelines were often overly harsh and unfair.
He recounted that one client got 10 years in prison for selling a small
amount of crack cocaine in a bar. Because he had been convicted of burglary
twice before, he was deemed a "career criminal" under the guidelines, Saxe
said.

Until recently, the guidelines also allowed people to be sentenced, in
effect, for crimes for which they weren't convicted, Saxe said.

A person could be found innocent on nine out of 10 charges, convicted on
one, "and then sentenced as if you were convicted on all of them. That's
absurd," Saxe said.

Young made clear his own opposition to the federal sentencing guidelines in
a 174-page ruling last summer in the case of U.S. v. Green. Soon afterward,
the Supreme Court issued its Blakely decision.

Young argued the guidelines took sentencing authority away from judges, and
gave prosecutors all the power.

Young wrote that federal prosecutors have been "addicted to plea
bargaining" as a way to pump up their conviction rates and appear
successful against crime.

"The focus of our entire criminal justice system has shifted far away from
trials and juries and adjudication to a massive system of sentence
bargaining that is heavily rigged against the accused citizen," Young wrote
in the Green decision.

"Not surprisingly, (the Department of Justice) uses its vast powers to
induce plea bargains, thus eviscerating the constitutional guarantee of
trial by a jury of one's peers."