Balance of Power

HIGH COURT DECLARES GUIDELINES ON SENTENCING VIOLATE RIGHTS

Federal Judges Are Handed Broad Discretion, and Told to Use Rules As
Suggestions Ball Is Now in Congress's Court

Federal sentencing guidelines, enacted two decades ago to standardize
prison sentences nationwide, are unconstitutional because they violate a
defendant's Sixth Amendment right to be tried by a jury, the U.S. Supreme
Court ruled.

The decisions, in a pair of 5-4 rulings, handed broader discretion to
federal judges by telling them to consider the guidelines merely as a
suggestion. The guidelines had bound judges to mete out punishment based on
a 1,800-page sentencing manual written by a congressionally established
commission. The system forced judges to boost sentences based on factors
that a jury hadn't ruled on. Now judges are permitted, but not required, to
do so.

While yesterday's ruling may shift the balance of power back to the
judicial branch temporarily, Congress -- especially one dominated by
Republicans in both houses -- may seek to reassert legislative control by
pushing through aggressive mandatory sentences. The Department of Justice
has already begun discussing how to set such rules without violating the
Constitution.

Rep. Tom Feeney, a Florida Republican who has pushed for tougher scrutiny
of lenient judges, said the court's decision is "an egregious overreach
into Congress's constitutional power" and called for quick action to ensure
that the spirit of the old guidelines is preserved.

Those who believe the guidelines were too harsh generally praised the
ruling. "Judicial discretion is greatly expanded here," said Kevin Reitz, a
sentencing expert who teaches at University of Colorado's law school.
"While in the short term, this leaves the federal sentencing system better
off than before, the great irony is that it'll be easy for Congress to make
the system much worse."

The rulings cap a tumultuous several months for the federal sentencing
system and will affect the 60,000 criminals sentenced each year in federal
courts. A few thousand defendants who have already been convicted but are
appealing their sentences may also have a chance to get less prison time.
However, the Supreme Court dashed the hopes of tens of thousands of other
federal prisoners by making clear that its decision won't apply
retroactively to cases that had reached final resolution.

The Supreme Court foreshadowed yesterday's ruling last June 24 by striking
down sentencing guidelines in the state of Washington that were similar to
the federal guidelines. Both sets of guidelines directed judges to boost
sentences based on exacerbating factors such as the defendant playing a
leadership role in a crime or acting with deliberate cruelty. The standard
for deciding whether to include these "enhancements" was merely a
preponderance of the evidence as determined by the judge -- rather than the
"beyond a reasonable doubt" standard used by juries in convicting a defendant.

In yesterday's ruling, the court ruled by a 5-4 majority that mandating
such enhancements violated the constitutional right of defendants to a
trial by jury. "There is no distinction of constitutional significance
between the Federal Sentencing Guidelines and the Washington procedures at
issue in that case," wrote Justice John Paul Stevens in the majority
opinion, joined by Justices Antonin Scalia, David Souter, Clarence Thomas
and Ruth Bader Ginsburg.

But those five justices couldn't agree on what should happen next --
whether judges should ignore the guidelines entirely or keep using them in
some form. Instead, a new five-justice majority took shape: the four
justices who dissented in the first opinion, plus Justice Ginsburg. This
separate majority concluded in a second opinion that the guidelines should
stay almost entirely intact, except for a few provisions that make them
generally mandatory. The second opinion, authored by Justice Stephen
Breyer, says judges should now treat the guidelines as advisory. Joining
Justice Breyer, who was one of the architects of the federal guidelines,
were Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor,
Anthony Kennedy and Justice Ginsburg.

Because the rulings give judges leeway to show leniency to criminals who
previously would have automatically been marked for severe punishments,
they were welcomed by some defense lawyers and other critics of the old
guidelines system including many federal judges. These critics believe the
old system tended to punish defendants harshly based on thinly supported
evidence that was never proved before a jury. A particular issue was the
role of guesswork in determining the amount of drugs involved in a crime,
and thus the length of the sentence.

The second opinion, written by Justice Breyer, gave federal appeals courts
specific guidance on reviewing disputed sentences, saying the key
determinant is the "reasonableness" of the original sentence. It's not
clear how courts will interpret that word.

"The question is whether judges formerly bound by the guidelines will be
able to step back from them now and regard them as truly advisory," said
U.S. District Judge Nancy Gertner of Boston. She predicted that the Supreme
Court's ruling won't signify a return to the "wild West" atmosphere prior
to the 1984 Sentencing Reform Act, when rulings sometimes varied widely
based on the personal predilections of judges. That is because most of the
nation's judges have sentenced only under the guidelines.

Justice Breyer tipped his hat to the possibility that the Supreme Court
won't have the final say. "The ball now lies in Congress' court," he wrote.
"The National Legislature is equipped to devise and install, long-term, the
sentencing system compatible with the Constitution that Congress judges
best for the federal system of justice."

Justice Department officials talked yesterday of seeking a quick fix in
Congress. Christopher Wray, who heads the department's criminal division,
said the guidelines have ensured that "similar defendants who commit
similar crimes receive similar sentences. Because the guidelines are now
advisory, the risk increases that sentences across the country will become
wildly inconsistent."

Frank O. Bowman III, a former federal prosecutor who teaches law at Indiana
University, said he believes congressional intervention is imminent. He
pointed out that in many cases, prosecutors persuade defendants to plead
guilty and cooperate by promising to reward them for "substantial
assistance." Under the guidelines, defendants who receive such recognition
are exempt from the guidelines' strict provisions. Now that the guidelines
are only advisory, defendants may see less need to cooperate. "The
Department of Justice has just lost all of its bargaining leverage" with
defendants, asserts Prof. Bowman.

Blain Rethmeier, a spokesman for Pennsylvania Republican Senator Arlen
Specter, the Senate Judiciary Committee chairman, said the senator would
work with the Department of Justice and the U.S. Sentencing Commission to
come up with a long-term remedy, adding that the senator will call for
hearings as soon as possible.

"The Supreme Court's decision to place this extraordinary power to sentence
a person solely in the hands of a single federal judge -- who is
accountable to no one -- flies in the face of the clear will of Congress,"
said Rep. Feeney, the Florida Republican.

Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary
Committee, urged Congress to "resist the urge to rush in with quick fixes
that would only generate more uncertainty and litigation and do nothing to
protect public safety."

While declining to address specific legislative proposals, Mr. Wray of the
Justice Department said "there are many advantages" to an earlier proposal
by Indiana University's Prof. Bowman. He has recommended that Congress take
the top off existing guideline ranges, replacing them with the legally
prescribed maximum for the crime. As in the pre-1987 system, judges
wouldn't have to give a justification for slapping a tough sentence on
defendants, so long as it was below the legal maximum.

Of the estimated 180,000 federal prisoners, no more than several thousand
have cases on direct review, meaning that under yesterday's Supreme Court
ruling most won't be able to seek a shorter sentence right now. More than
95% of all cases are resolved through plea bargains, rather than jury
trials. In these instances, defendants are usually required by the plea
agreement to waive appeal rights.

One high-profile defendant who stands to benefit from yesterday's rulings
is former Dynegy Corp. executive Jamie Olis. Mr. Olis was convicted for his
role in a fraud case and was sentenced in March to 24 years in prison,
largely because of enhancements now rendered unconstitutional by the
Supreme Court.

The basic crime for which Mr. Olis was convicted carried minimal prison
time. But a Houston federal judge determined the loss from Mr. Olis's fraud
to be $105 million. That determination alone added more than 10 years to
his sentence. Oral arguments on Mr. Olis's appeal are scheduled for Jan. 31.

"This is good news," says David Gerger, Mr. Olis's lawyer in Houston. "This
decision gives judges the discretion they need to be fair and to make sure
that sentences are based on reliable and tested evidence."

The two cases that led to yesterday's rulings came up for sentencing
following the ruling last June 24 in Blakely v. Washington on Washington
state sentencing rules. In the first case ruled on yesterday, Freddie
Booker was charged with possession with intent to distribute crack cocaine.
Based on his criminal history and the quantity of drugs determined by the
jury, the guidelines required the judge to sentence Mr. Booker to about 18
years in prison.

But the judge concluded by a preponderance of the evidence that Mr. Booker
possessed more crack and that he was guilty of obstructing justice. Those
findings required the judge to impose a sentence of 30 years to life. An
appellate court held the guidelines to be unconstitutional based partly on
a 2000 Supreme Court ruling that said that "other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and proved beyond
a reasonable doubt." The government appealed to the Supreme Court, which
backed the appellate court.

Meanwhile, Ducan Fanfan was sentenced by a federal district judge in a
cocaine case only on the amount of drugs the jury determined, rather than
on a greater amount of cocaine and a leadership role in the offense, as
prosecutors urged. Mr. Fanfan, who would have received an enhanced sentence
of up to 16 years, instead was sentenced by the judge to slightly more than
five years. The government appealed, and the Supreme Court agreed that the
district judge should reconsider the sentence. As with other sentences
under the new system, the district judge will have the option of giving an
enhanced sentence to Mr. Fanfan based on the extra cocaine and the alleged
leadership role, although he isn't required to do so.

Since last June's ruling, federal courts have been in disarray, with some
holding the guidelines unconstitutional and others mandating they must be
used. In California and elsewhere, judges were told by appeals courts to
put sentencing facts to juries to decide. Yesterday's ruling removed this
power from juries and put it back in the hands of judges.