JUDGES GET SENTENCE DISCRETION IN RULING

It's A Good Thing, Local Jurists Say

A U.S. Supreme Court ruling that said mandatory federal sentencing
guidelines are unconstitutional may not adversely affect sentencing in
the 26 counties of the Oklahoma's U.S. Eastern District, the U.S.
attorney in Muskogee said.

Judges now have more discretion, said U.S. Attorney Sheldon "Shelly"
Sperling.

"The sky is not falling -- I am confident that our judges will
exercise proper sentencing discretion," Sperling said. "There is no
namby-pamby on the bench in this district." The Supreme Court ruled
Wednesday that federal judges have been improperly adding time to
criminals' sentences under a system intended to make sure sentences do
not vary widely from courtroom to courtroom.

Sperling, a member of the Attorney General Advisory Committee on
Sentencing Guidelines talked about the ruling Thursday with committee
members across the nation via a conference call.

"The reaction of prosecutors is all across the spectrum," Sperling
said.

But Wednesday, Mark Corallo, spokesman for the U.S. Justice
Department, said the department was disappointed in the ruling, was
reviewing it and would have more to say later.

Defense Attorneys Like Court's Ruling

"Every prosecutor and U.S. attorney is crying today -- they hate it
because it's going to take their power away from them," said criminal
defense attorney Donn Baker of Tahlequah, who is a former U.S.
attorney in the Eastern District.

Under the mandatory sentencing guidelines, prosecutors often
determined the sentence by the way they charged the defendant, Baker
said.

"They (prosecutors) kind of took control of the situation," Baker
said.

Baker said he is happy with the new ruling.

"I think it's a good thing -- most defense lawyers are going to think
the ruling is a good thing. A fair and impartial judge will get to
decide all the evidence," Baker said. "Not every case is the same and
doesn't deserve the same sentence.

"Under the guidelines, there isn't a lot of wiggle
room."

Sperling said that instead of apprehension that the new ruling will
lessen criminal sentences, there is the prospect that if unrestrained
by mandatory guidelines, some sentences may be more severe.

"I expect Congress will address this issue to promote some form of
determinate sentencing," Sperling said. "I think the department
(Justice Department) will help drive the vehicle of change rather than
back-seat drive eventual congressional legislation."

Judges Trying to Sort Out New Ruling

In the short term, the ruling makes it more difficult because the
Supreme Court did not tell trial judges how they're supposed to
sentence now, said U.S. District Judge Ronald A. White, who serves the
Eastern District in Oklahoma.

"We're trying to decipher how to go forward," said White, who has five
sentencings scheduled for Tuesday in U.S. District Court in Muskogee.

In the long run, it will depend on which judge you ask, White
said.

"A lot of federal judges believed the sentencing guidelines unfairly
tied their hands in giving sentences," White said. "Some believed
Congress was as justified in deciding what a just sentence was in a
case as the judge was."

White refused to give his personal opinion, saying he wasn't around
before the sentencing guidelines were passed and had nothing to
compare it to.

Some judges will like more discretion in sentencing and some will not,
White said.

The idea of the guidelines was to minimize sentencing disparity, White
said, citing that someone committing a crime in one district might
have gotten a much different sentence from someone committing the same
crime in another district.

And sometimes, different judges in the same district would give
different sentences, he said.