HIGH COURT WEAKENS SENTENCING GUIDELINES

WASHINGTON - The Supreme Court on Wednesday transformed federal criminal
sentencing by restoring to judges much of the discretion that Congress took
away 21 years ago when it put sentencing guidelines in place and told
judges to follow them.

The guidelines, intended to make sentences more uniform, should be treated
as merely advisory in order to cure a constitutional deficiency in the
system, the court held in an unusual two-part decision produced by two
coalitions of justices.

In the first part, five justices declared that the current guidelines
system violated defendants' rights to trial by jury by giving judges the
power to make factual findings that increased sentences beyond the maximum
that the jury's findings alone would have supported.

That portion of the opinion had been widely anticipated, growing directly
out of a similar conclusion the same five justices - John Paul Stevens,
Antonin Scalia, David Souter, Clarence Thomas and Ruth Bader Ginsburg -
reached last June in invalidating the sentencing guidelines system in the
state of Washington.

The real question hanging over the case, which the court heard in October
on the opening day of its new term, was how the justices would solve the
problem.

So it was the second part of the decision - the remedy - that was the
surprise and that will shape the continuing debate over sentencing policy.
With Ginsburg joining the four justices who dissented from the first part -
Stephen Breyer, Sandra Day O'Connor, Anthony Kennedy and Chief Justice
William Rehnquist - a separate coalition said the problem could be fixed if
the guidelines were treated as discretionary rather than mandatory.

From now on, Breyer said, writing for the majority in this portion of the
decision, judges "must consult" the guidelines and "take them into account"
in imposing sentences. But the guidelines will be advisory only, with
sentences to be reviewed on appeal for "reasonableness."

Lawmakers and legal experts predicted Wednesday that the court's decision
would renew the struggle between Congress and the judiciary for control
over sentencing. On Capitol Hill, some members of Congress made it clear
that they were bracing for a fight over how much discretion federal judges
should have.

The decision leaves many unanswered questions. But it will be in the
federal appeals courts that the decision's real meaning will emerge, as
those courts build a body of law evaluating the "reasonableness" of sentences.

The remedy devised by Breyer's five-member majority had not been proposed
by any party, although the Justice Department suggested a form of advisory
guidelines as a fallback position to its defense of the system's
constitutionality.

In a series of cases, the court has held that given the Sixth Amendment
right to trial by jury, judges cannot impose sentences beyond the
"prescribed statutory maximum" unless the facts supporting such an increase
are found by a jury beyond a reasonable doubt.

The constitutional cloud over federal criminal sentencing rested in the
mandatory nature of the guidelines, which instruct judges to consider
various facts, such as a defendant's leadership role in a criminal
enterprise, and to increase sentences accordingly. The court made it clear
in the Washington state case last June that the top of an ordinary
guideline range was the equivalent of a statutory maximum.

But if judges simply exercise their traditional sentencing discretion,
advised by guidelines but not bound by them, the defendant's Sixth
Amendment right is not implicated, a conclusion on which all nine justices
agreed on Wednesday.

In other words, as judges' flexibility grows, defendants' Sixth Amendment
protections shrink.

The dispute on the court was not over that paradoxical proposition, but
rather over how Congress would have chosen to proceed if it had known of
the Sixth Amendment issue when it put the guidelines system in place in the
Sentencing Reform Act of 1984.