JUSTICES SHOW INCLINATION TO SCRAP SENTENCING RULES

WASHINGTON -- By the time the first day of the new Supreme Court term ended
on Monday, there seemed little doubt that criminal sentencing in the United
States was about to change. But what form the change might take, how
drastic it might be, and whether defendants or prosecutors would benefit
the most remained very much open to question as the court heard arguments
on the constitutionality of federal sentencing guidelines that have been in
effect for 17 years.

A series of Supreme Court decisions, culminating in June with the
invalidation of the sentencing guidelines in the Washington State,
established the principle that juries, and not judges, must rule on the
facts that are the building blocks of a criminal sentence.

In the June case, Blakely v. Washington, the court said that the Sixth
Amendment right to trial by jury requires that any fact, like the quantity
of drugs in a narcotics case, that leads to a sentence greater than the
maximum the defendant could otherwise receive must be proven to a jury
beyond a reasonable doubt.

Most of the justices on Monday appeared prepared to apply that decision to
the federal guidelines, despite the vigorous effort of Paul D. Clement, the
acting solicitor general, to persuade the court otherwise. The court's
concern, Mr. Clement said, has been not to allow judges to set sentences
beyond the ' 'statutory maximum" for a crime. While the Washington
guidelines were part of state law, the federal guidelines came from the
United States Sentencing Commission, which does not enact statutes and
should not raise the same concern, he said.

Justice David H. Souter rejected the argument. "The defendant in the
courtroom is going to suffer the same effect, whether it's a rule, a
guideline, or a statute," he said. "Why should that make any difference
under the Sixth Amendment?"

And Justice Ruth Bader Ginsburg told the government lawyer, "The
distinction you're making really doesn't stand up."

Those two justices' responses were significant because both were part of
the 5-to-4 majority in the Blakely decision and have been seen by some
court-watchers as the most likely of the five to try to draw a boundary
between that case and the federal guidelines. But they showed no
inclination to do so.

The other members of the majority were Justices Antonin Scalia, who wrote
the opinion; John Paul Stevens, who wrote the opinion in Apprendi v. New
Jersey that started the court on this path four years ago; and Clarence Thomas.

The court spent most of the argument debating what might happen if the
guidelines in their current form could no longer be used. There appeared to
be no consensus.

The government's position is that if the guidelines can no longer be
applied as binding sentencing rules, judges should be able to use them in
an advisory way and have the discretion to impose any sentence within the
range that Congress has set for the crime. Justice Stephen G. Breyer, for
one, appeared to find that alternative attractive. What would be wrong,
Justice Breyer asked, with substituting the word "may" for the word "shall"
in the law that directs judges to use the guidelines?

There would be nothing wrong with that, Mr. Clement replied.

Justice Scalia interjected, "Could it be that 'shall' does not mean 'may'?"

Justice Breyer is the court's strongest advocate for the guidelines. He
played a leading role in their development as a Senate staff member and
later as a member of the sentencing commission. In contrast to his usual
air of wry good cheer, Justice Breyer appeared weary and somewhat forlorn
as the argument progressed.

To J. Christopher Kelly, a defense lawyer arguing on behalf of Freddie J.
Booker, one of the two defendants before the court, Justice Breyer observed
that Congress's objective in establishing the guidelines system was
uniformity in sentencing. "I think it was a noble objective, whether or not
it was achieved,' ' Justice Breyer said. "Are you saying, 'Sorry, there's
just no way to do it?"'

The result, he suggested, would be that one cellmate would serve a day in
prison and the other cellmate 50 years when their "real conduct was the same."

Mr. Kelly replied, "The real conduct can still be proved to a jury." He and
Rosemary Scapicchio, representing the other defendant, Ducan Fanfan, both
said that under current sentencing practice, the government "proves the
easiest charge and saves the heart of the case for sentencing," as Mr.
Kelly put it.

In his client's case, United States v. Booker, No. 04-104, the jury
convicted Mr. Booker of possessing and intending to distribute at least 50
grams of cocaine base. For that crime, the guidelines recommended a
sentence of 20 to just over 22 years. But the judge sentenced him to 30
years by finding that he had distributed 10 times that amount of cocaine in
the weeks before his arrest.

Mr. Booker had been neither charged nor convicted of distributing that
amount, but the manual on sentencing guidelines instructs judges to base
the sentence on all acts "that were part of the same course of conduct or
common scheme or plan as the offense of conviction."

The federal appeals court in Chicago found that this additional sentence
violated the principle established in the Blakely decision, and the
government appealed to the Supreme Court.

In the second case, United States v. Fanfan, No. 04-105, a jury found the
defendant guilty of conspiring to possess and distribute at least 500 grams
of cocaine. Four days after the Supreme Court issued the Blakely ruling, a
judge sentenced Mr. Fanfan to six and a half years in prison, the maximum
guidelines sentence for the offense. Prosecutors had sought about 15 to 20
years, in light of the evidence it presented at sentencing that the
defendant had been a ringleader of the conspiracy.

The judge, D. Brock Hornby of Federal District Court in Maine, said the
federal guidelines were "exactly comparable to the Washington state scheme
in all respects material to the Blakely decision."

Mr. Clement referred at one point Monday to "carnage and wreckage" in the
federal criminal justice system, and began his argument by noting that
federal courts impose 1,200 criminal sentences every week. All the justices
did not share the government's sense of dread. Justice Stevens noted
several times that 97 percent of federal criminal cases are settled by plea
bargains, with only 3 percent going to trial. He said he was "not
persuaded" that a major problem loomed for the government.

In addition to making the guidelines advisory for judges, another option
discussed was keeping the guidelines but having the jury, rather than the
judge, make the factual findings on which the sentence depends. That would
require the government to specify those facts -- such as the quantity of
drugs, or the degree of the defendant's involvement in a conspiracy -- and
to prove them to the jury beyond a reasonable doubt.

Mr. Clement dismissed this idea as the "Blakely-ization of the guidelines,'
' which he said would amount to "judicial law-making." Guidelines that were
' 'clearly designed for judicial fact-finding" were not suited for use by
the jury, he said.

At one point, Justice Sandra Day O'Connor, one of the strongest dissenters
from the Blakely decision, seemed to reach a moment of frustration and
resignation. "Maybe we should just leave it to Congress," she said.