SUPREME COURT STARTS TERM, ADDRESSES PRISON SENTENCES

WASHINGTON - With thousands of prison sentences on the line, the
Supreme Court will decide whether judges have too much power to tack
on extra cell time in a case that one justice said could wreak havoc
on courthouses nationwide.

The high court stunned prosecutors, judges and public defenders when
it ruled in June that judges had been given too much sway in
determining the length of prison terms.

In two follow-up appeals set for argument Monday, justices will decide
if the federal sentencing system, and possibly practices in the
states, must be scrapped. The summer ruling dealt only with sentencing
in Washington state.

"It looks like a No. 10 earthquake to me," Justice Sandra Day O'Connor
told a group of judges in a July speech, adding that she was
"disgusted in how we dealt with it."

In recognition of the sweeping impact, the court has put the appeals
on a fast track, scheduling argument on the first day of their
nine-month 2004-05 term.

At stake is a federal system set up by Congress in 1987 to make
sentencing more fair. Judges have a range of possible sentences for
each crime. They make factual decisions that affect prison time, such
as the amount of drugs involved in a crime or the amount of money
involved in fraud.

Since June, many judges have delayed sentencings or handed down
lighter penalties because of confusion about the future.

More than 200 people are sentenced every day in federal courts. When
you add state sentences to that, the number tops 1,000 each day, said
Douglas Berman, an Ohio State University law professor.

"The criminal justice system to some extent has ground to a halt,"
Berman. "This has a ripple effect on how everything else in the
criminal justice system operates."

Federal prosecutors have changed the way they indict defendants and
handle plea bargains. They've also been asking judges to consider two
sentences - one to be used should the sentencing structure be found
constitutional, and one if it were overturned.

The constitutional question for the court is whether defendants' Sixth
Amendment right to a jury trial is undermined when judges, instead of
jurors, make critical decisions that add to sentences.

The appeals involve people sentenced on drug charges in Wisconsin and
Maine.

A panel of the 7th U.S. Circuit Court of Appeals in Chicago threw out
Freddie Booker's sentence because a Wisconsin federal judge, acting
alone, decided how much drugs were involved and that the man had
obstructed justice.

The second case involves a Massachusetts man, Ducan Fanfan, who
received a lighter prison sentence this summer for a conviction in
Maine of conspiracy to distribute cocaine, because of the court's
ruling in the Washington state case.

An odd Supreme Court coalition voted to strike down Washington's
system, including the court's most liberal members - John Paul Stevens
and Ruth Bader Ginsburg - and its two most conservative - Antonin
Scalia and Clarence Thomas.

Opposing the decision was Justice Stephen Breyer, who worked on the
sentencing law as a Senate Judiciary Committee staff lawyer and served
on the Sentencing Commission, which sets guidelines for judges.

Erwin Chemerinsky, a law professor at Duke University, said Breyer is
considered one of the parents of the sentencing system and should step
aside from hearing the case.

With or without Breyer in the case, the court is expected to be
splintered. A ruling is likely before Christmas.

The cases are United States v. Booker, 04-104, and United States v.
Fanfan, 04-105.