HIGH COURT LOOSENS CRIMINAL SENTENCING GUIDELINES

WASHINGTON -- The Supreme Court yesterday dramatically changed how criminal
defendants are sentenced in federal court, a decision that calls into
question thousands of sentences across the country and throws open how the
federal government investigates, charges and negotiates with accused criminals.

In a 5-4 opinion by Justice Stephen Breyer, the court said the federal
sentencing guidelines, which have provided judges with set formulas to
calculate sentences for almost 18 years, were not mandatory. Judges, the
court said, were not always required to follow them.

Yesterday's outcome emerged from unusual twin majority opinions in United
States v. Booker and United States v. Fanfan. One group of five justices
said the current administration of the guidelines violates defendants'
right to a jury trial because judges impose sentences under them based on
facts that a jury did not find beyond a reasonable doubt. Another group of
five justices explained why the guidelines must nevertheless continue to
shape sentencing decisions even if judges are no longer legally bound to
follow them.

It comes on the heels of a 5-4 ruling last June that Washington state's
sentencing-guideline system was unconstitutional.

Criminal defense lawyers and legal observers predicted confusion and
inconsistency in sentences, as lower courts try to make sense of the
Supreme Court's pronouncements.

The decision yesterday for which Breyer wrote the major opinion appears to
give judges significantly more discretion in how they sentence defendants,
an outcome the guidelines were designed to curtail. It also is likely to
immediately bring Congress back into the sentencing arena to take that
discretion away. In his opinion, Breyer acknowledged that "ours, of course,
is not the last word: The ball now lies in Congress' court."

Gregory Poe, a Washington, D.C., attorney and former federal defender,
said, "Congress is likely to make changes. And there is great concern that
Congress may have an appetite to create a system applying strict penalties
regardless of the merits in individual cases."

Although the court's decision does not appear to reach back and affect
cases that have been decided already, it nonetheless could give "hundreds
of thousands of defendants" an argument to the contrary, said Douglas
Berman, a professor at the Ohio State University Law School. Others said
the ruling threatens to undo years of sentencing reform at the federal
level and stop state efforts to develop uniform guidelines. The decision,
they said, could create wildly divergent sentences for similarly situated
defendants, based simply on which courtroom their case ends up in.

Frank Bowman, a professor at the Indiana University School of Law and a
leading expert on the guidelines, said, "There is one thing that appears to
be clear: The court has, by either judicial fiat or an act of statutory
interpretation, created a system of advisory guidelines which, I think you
can at least argue, give federal trial judges the greatest sentencing power
they've ever had."

Assistant Attorney General Christopher Wray said the Justice Department was
"disappointed" that the court had made the guidelines advisory in nature,
but emphasized that the opinion makes clear that trial judges still are
required to consult the guidelines in making sentencing decisions.

Led by Justice Antonin Scalia, an unusual coalition of liberal and
conservative justices had joined forces to say that juries -- not judges --
should decide key facts in a case, if those facts would enhance a
defendant's sentence. That group -- Scalia, John Paul Stevens, David
Souter, Clarence Thomas and Ruth Bader Ginsburg -- joined to strike down a
sentencing system in Washington state last June, in a decision called
Blakely v. Washington.

That decision caused chaos in lower federal courts. Dissenting justices in
Blakely had warned that the reasoning in the decision would undermine the
federal sentencing guidelines, and lawyers immediately began challenging
sentences based on those assumptions.

Some lower courts took the Blakely decision to undermine the federal
guidelines, as well, since they require judges to decide facts -- such as
the amount of drugs in question -- when calculating sentences. Others took
a different view.

The Supreme Court agreed last summer to decide the issue on an expedited
basis, and after arguments on the first day of the court's term in October,
most expected the five to again come together and say juries must decide
those critical facts if they would enhance a sentence.

After news of the ruling, U.S. District Judge Robert Lasnik huddled with
his fellow federal judges in Seattle. Afterward, he described the decision
as "good news" and said "the end result is that judges will have more
discretion than they have had."

John McKay, the U.S. attorney for Western Washington, said, "The full
impact of this decision will not be known until we see how our
distinguished federal bench uses the additional discretion created by this
opinion." He said the ruling probably would not be applied retroactively to
those cases in which "the conviction has long since become final."

About 600 defendants were indicted last year in the Western District of
Washington, McKay said. Approximately 25 appeals might be affected by this
ruling.

Tom Hillier, the federal public defender for Western Washington, said he
believes federal judges in this area will lean toward more lenient sentences.

"My feeling is that the defendants in this district are going to fare
better than they would under the [mandatory] guideline scheme," Hillier
said. "Frequently, judges within this district have found that the
sentencing ranges were much too severe."