SUPREME COURT MULLS CHANGING SENTENCING RULES

A divided Supreme Court yesterday raised critical questions about the
future of the 17-year-old federal criminal-sentencing system under
which more than 60,000 convicts are sentenced each year.

In a two-hour hearing, the nine justices heard arguments about the
constitutionality of federal sentencing guidelines, which were enacted
in 1987 to standardize sentences for similar crimes nationwide. But
legal specialists say disparities remain. The judicial system often
adds years to sentences for conduct that has never been proven to
juries beyond a reasonable doubt or admitted to by defendants. And
prosecutors can enhance or cut sentences based on information they
provide probation officers and judges before sentencing.

The question now before the court: whether to apply to the federal
sentencing system a June 5-4 high-court ruling, called Blakely v.
Washington. That decision barred trial judges in Washington state from
boosting a defendant's sentence based on any fact not considered by
juries or admitted to by defendants, except for prior
convictions.

Already, the Blakely decision has roiled the judiciary. Federal judges
and circuit courts have cited it in dozens of legal opinions in recent
months; indeed, its impact on the federal system has been far greater
than on the states. That's because, according to the U.S. Sentencing
Commission, in more than 44% of all federal cases in 2002, judges have
made findings by a preponderance of evidence that have served to boost
defendants' sentences. Before the federal guidelines were enacted in
1987, judges had complete discretion in sentencing defendants.

The justices spent much of yesterday's hearing worrying aloud about
how juries might consider the facts judges have traditionally used to
boost sentences. Chief Justice William Rehnquist pondered how juries
could consider perjured testimony by defendants, for it wouldn't be
apparent that a defendant hadn't told the truth before the trial ended.

Justice Stephen Breyer, who helped to draft the federal sentencing
guidelines, noted that there are issues that are too difficult to
explain to juries and that much information gathered for sentencing
purposes isn't available until after trials end. Both Justices
Rehnquist and Breyer were in the minority in the Blakely case.

Justices Ruth Bader Ginsberg, David Souter and John Paul Stevens, all
of whom joined Justice Antonin Scalia in the Blakely case, questioned
how a version of the federal guidelines that conformed with Blakely
would function. Justice Ginsberg noted that "relevant conduct"
considered by judges at the time of sentencing is something that
defendants wouldn't necessarily want jurors deciding their fight to
know about.

"It seems almost a certainty that Blakely will be applied to the
federal guidelines," says Douglas Berman, a professor of law at Ohio
State University and the author of a daily blog that has tracked
Blakely-related decisions. "There was nothing said that suggested that
any of the justices in the Blakely majority thought otherwise." Mr.
Berman expects Congress will make further changes, no matter what the
court rules.

[sidebar]

SOUNDING OFF

Remarks from participants and spectators in the Supreme Court's review
of the federal sentencing system.

"We would become the Sentencing Commission. I thought I'd
escaped."

- --Justice Stephen Breyer, a former member of the commission that sets
guidelines for judges, on concerns that the high court would be
overwhelmed with cases challenging sentences.

"I don't care if the upper level of the guidelines were prescribed by
a court. Even if they were prescribed by a court, how does that
eliminate the jury trial problem? The whole reason for jury trials is
we don't trust judges."

- -- Justice Antonin Scalia

"The guidelines as we know them are very likely to be found
unconstitutional. The big question is what they do about that, whether
or not the guidelines have to be struck down completely, whether they
can be applied in part, whether they become advisory."

- --Frank Bowman, an Indiana University law professor who attended the
argument.

"Whether it's a rule, statute or guideline, why should that make a
difference for the Sixth Amendment?"

- --Justice David H. Souter.

"What percent would violate that rule?"

- --Justice John Paul Stevens.

"About 65 percent (of federal criminal cases) ... any way you slice
this, it's going to have a tremendous impact."

- --Acting Solicitor General Paul Clement.

"It looks like the guidelines are going to have a difficult time
picking up an additional vote. If that's the case, the Justice
Department and the Sentencing Commission are going to have to work
closely to ensure the goals of sentencing reform are continued."

- --Michael O'Neill, member of the Sentencing Commission, after the
argument.

"It's very likely to be an interim solution."

- --Rosemary Scapicchio, representing one of the defendants, on the
court's upcoming decision in the appeals.

"Congress may well get involved."

- --Acting Solicitor General Paul Clement

No one, however, is suggesting that the entire system of federal
guidelines will be junked. But some specialists believe there will be
a major overhaul of sentencing rules in any event. "Major change is
coming one way or another," said Ron Weich, a Washington, D.C., lawyer
and former counsel to the Senate Judiciary Committee. "There is enough
opinion that the system is broken . . . there will be major reform. A
very salutary effect of Blakely has been to air a lot of frustrations
with the system that has now burst into public view."

The government argued yesterday that up to 65% of all federal cases
might now have to be considered anew because of the Blakely case,
though Justice Stevens played down the severity of the problem. "In
most cases, there aren't a host of factors" that juries might have to
consider, Justice Stevens said, "but just two or three."

Specifically at issue were two cases questioning whether the federal
guidelines violate defendants' Sixth Amendment rights to jury trials.
In one, a judge augmented the sentence of Freddie J. Booker, a
Wisconsin man who was convicted of possessing and selling crack
cocaine, by eight years beyond the sentencing range for the offenses
for which he was convicted.

The second case involved Ducan Fanfan, a Maine man convicted by a jury
of conspiring to distribute cocaine hydrochloride. Mr. Fanfan, whose
sentencing occurred after the Blakely decision, received a much lower
sentence than he might have otherwise, when the federal judge, citing
Blakely, refused to consider enhancements.

Lawyers for Messrs. Booker and Fanfan argued that factors serving to
lengthen a defendant's sentence should be presented to juries for
their determination, rather than left to judges to decide. This is
precisely what the court determined ought to happen in Washington state.

But Paul D. Clement, the acting solicitor general who argued the case
for the government, said the federal guidelines, created by a
sentencing commission within the judicial branch of government, are
distinct from state sentencing rules.
This was a distinction several justices appeared unwilling to accept.
Justice Scalia, who wrote the majority decision in the Blakely case,
noted that defendants would be hard-pressed to understand that
difference when the result of judge-based findings on a preponderance
of evidence was essentially the same under both systems.

"It wouldn't make me feel good if I had to spend another 10 years in
jail," Justice Scalia said.

The import of yesterday's arguments and what might result from them
wasn't lost on the justices. "I assume any solution we come up with is
likely to be an interim solution," Justice Scalia said. Justice Breyer
agreed: Congressionally enacted "mandatory minimums might make
nonreform a reality."

Indeed, Congress has been enacting a series of mandatory minimum
sentences from which judges aren't permitted to depart, in a host of
crimes, many of them drug-related. These laws are viewed by
sentencing-reform advocates as particularly stringent.

"My guess is that the Justice Department walks out of court today and
tells Congress it's time for legislation" that would fly in the face
of true sentencing reform, predicts Frank O. Bowman III, a sentencing
expert at Indiana University's law school.