HIGH COURT DECISION GIVES FEDERAL JUDGES MORE DISCRETION IN SENTENCING

Evidence That Affects Term Must Be Presented to Jury; Federal
Guidelines Long Debated; Decision Might Open Door to Rollback of Sentences

In a ruling that drastically overhauls the way the nation's federal
defendants are sentenced, the U.S. Supreme Court found the current
system unconstitutional yesterday and said judges will no longer be
required to follow the 17-year-old federal sentencing guidelines.

In its 5-4 ruling, the court specifically criticized a routine
practice under the system, in which a judge may increase a defendant's
prison time based on evidence a jury has not considered - the amount
of drugs a defendant possessed, for instance, or whether he was the
ringleader of a gang.

The court ruled that juries should decide these factors.

The decision opens the door for potential sentence rollbacks in untold
numbers of cases currently on appeal. It was unclear whether the
ruling could be applied to reopen old cases.

"It's huge," said Larry Nathans, a Baltimore lawyer who chairs an
American Bar Association panel on federal sentencing. "It dramatically
changes the way people who commit federal crimes are sentenced."

The decision does not entirely scrap the oft-debated guidelines. "It
requires a sentencing court to consider Guidelines ranges ... but it
permits the court to tailor the sentence in light of other statutory
concerns as well," Justice Stephen G. Breyer wrote for the majority in
the opinion.

It is a position judges have advocated for years. Ever since the
guidelines went into effect, many federal judges have complained that
rather than create fairness and uniformity, the guidelines have often
forced them to impose nonsensical prison terms.

"We all need time to read and reflect on the full opinion," said
Maryland U.S. District Judge Catherine C. Blake. "It appears, however,
that the Supreme Court has left in place a system that will truly
guide a judge's discretion at sentencing without mandating what might
in an individual case be an unjust result."

Defense attorneys also praised the decision, saying it will rebalance
a system they believe has tilted too far in favor of the prosecution.
But the U.S. Department of Justice said it was "disappointed that the
decision made the guidelines advisory in nature."

Assistant U.S. Attorney General Christopher A. Wray said in a
statement yesterday that the mandatory guidelines correctly limited
judicial discretion and assured "similar treatment of defendants with
similar criminal records who committed similar criminal conduct."

"In addition, the guidelines allow judges to target longer sentences
to especially dangerous or recidivist criminals," he said.

Additional Evidence

Under the old system, prosecutors could introduce new evidence at
sentencing that the judge would consider by a preponderance of the
evidence - a lower standard than the jury's "beyond a reasonable doubt."

If the judge accepted that evidence, the sentencing guidelines would
often require a longer prison term for the defendant, sometimes years
more.

That is what happened to Freddie Booker, one of the defendants at the
heart of the court's decision yesterday.

A jury in Wisconsin found Booker guilty of possession with intent to
distribute at least 50 grams of crack cocaine. The sentencing
guidelines in his case required the judge to set a maximum "base"
sentence of 21 years and 10 months in prison.

But at sentencing, the judge concluded that Booker had possessed an
additional 566 grams of crack and was guilty of obstructing justice.
That meant that, because of the guidelines, the judge had to sentence
him to at least 30 years in prison.

In United States v. Booker and the companion case United States v.
Fanfan, the Supreme Court said Booker's sentence violated the Sixth
Amendment, which includes the right to a trial by jury. Any fact that
could increase time in prison by almost a decade should be decided by
one's peers beyond a reasonable doubt, it said.

Fairness Over Speed

"We recognize, as we did [in earlier cases], that in some cases jury
fact-finding may impair the most expedient and efficient sentencing of
defendants," Justice John Paul Stevens wrote for the majority in one
part of the opinion. "But the interest in fairness and reliability
protected by the right to a jury trial - a common-law right that
defendants enjoyed for centuries and that is now enshrined in the
Sixth Amendment - has always outweighed the interest in concluding
trials swiftly."

The decision was not unexpected. In some recent cases, the court has
tried to combat what it described as an erosion of the right to a jury
trial.

Last summer, the court ruled that Washington state's sentencing system
violated defendant Ralph Blakely Jr.'s right to a trial by jury
because it allowed his sentencing judge to make findings on some
issues that were not presented to a jury.

Blakely, convicted of kidnapping his estranged wife in 1998, pleaded
guilty and faced a maximum of 53 months for the crime, but a state
judge added 37 months after finding at a sentencing hearing that
Blakely acted with "deliberate cruelty."

Since that ruling, federal judges and lawyers have been waiting for
the court to clarify whether the decision also applied to the similar
federal sentencing system. Many judges have issued two sentences for
defendants - one as if the guidelines were mandatory, one as if they
were simply guides. In some jurisdictions, judges have postponed
sentencings in order to see what the Supreme Court would do with the
Booker case.

Yesterday's decision gave clear guidance to the lower courts on how to
proceed, said Yale law professor Kate Stith:

"The court did its main job, which is to state what the law is in a
clear enough way to let the lower courts do their job."

But the longer-term impact is less clear. "This decision will likely
set off a national debate in Congress and across the country about how
to sentence criminals," said Jesse Rutledge, spokesman for Justice at
Stake, an organization that works for an independent judiciary. "The
danger is that Congress will use this as an opportunity to grab for
the gavel."

He and others worry that Congress will try to pass additional
mandatory minimum-sentence legislation, which the judiciary has
criticized as unwise and unfair.

"I hope Congress will not act precipitously in an effort to curtail
judicial discretion and instead will direct the U.S. Sentencing
Commission to monitor and report on judges' sentencing decisions over
the next year or two," said Maryland U.S. Magistrate Judge James K.
Bredar. "Americans can and should watch their courts closely - if they
do they'll see that federal judges, acting in this new era of advisory
and non-mandatory guidelines, will sentence intelligently and
responsibly, and in a manner that justifies the trust placed in them
by the community."