CRIMINAL SENTENCING TAKES GUESSWORK

U.S. District Judge Tim Leonard doled out multiple-choice sentences last
week, giving a bank robber three prison term options. Leonard has given
such sentences four other times in the past few weeks.

He is hoping the U.S. Supreme Court soon will clarify which sentence is
constitutional, given the court's recent ruling striking down tough
sentencing laws in Washington state.

"Based upon the uncertainty of the Supreme Court and the impact of the
Blakely v. Washington case, the court is going to impose three sentences,"
Leonard said Wednesday from the bench. "Trying to guess what the Supreme
Court might or might not do is a rather precarious position sentencing
judges are in."

The law occasionally ripples with change, but the June 24 decision
expanding the right of a jury trial to sentencing issues has caused a tidal
wave.

The high court's Blakely ruling has left a wake of divided courts and
lightly treading prosecutors. Defense attorneys are clamoring to rock the
boat, and thousands of convicts are fishing for shorter prison terms.

"This is a much bigger flux than usual," said Barry L. Johnson, a professor
at Oklahoma City University School of Law. "What's happening now, I think a
lot of people are describing as utter chaos."

Guidelines called into question U.S. district and appellate court judges
have ruled that since Washington state's sentencing system resembles
federal rules, the high court's decision makes U.S. sentencing guidelines
unconstitutional. Other judges have found that Blakely doesn't affect
federal sentencing.

"Even the judges within this district are taking different approaches,"
Leonard said.

"In my 20 years of practicing law, I have never seen a decision that caused
more confusion," said U.S. Attorney Robert McCampbell, head prosecutor for
Oklahoma's Western District.

Already, two petitions have been filed asking the Supreme Court to clarify
how the Blakely decision affects federal law. Unless the court convenes
early, the soonest it would consider the petitions is October.

A legislative fix Legislators are getting into the mix. Orrin Hatch,
R-Utah, chairman of the U.S. Senate Judiciary Committee, said he is looking
for a legislative way to stem the tide of a system "run amok."

Under federal guidelines, judges can add time to a defendant's sentence if
they find a preponderance of the evidence shows an aggravating factor, such
as use of a gun, to be true.

Some judges, such as Leonard, are hesitant to guess the effect of the
Supreme Court's decision regarding Washington state law on the federal
guidelines.

"What I'm trying to do with alternative sentences is avoid resentencing
based on what the Supreme Court may do," said Leonard, who has been on the
bench for 12 years. "It could have the largest ramifications of any
decision since I've been on the bench."

Wednesday, each sentence Leonard gave Eric Justin Moses, who had pleaded
guilty to four bank robberies, reflected a different interpretation of the
Blakely case:

A. Six years and six months, if current guidelines are constitutional and
the judge can add time for an enhancement of threatening death during the
robberies.

B. Five years and 11 months if the enhancement is unconstitutional.

C. Six years and six months if all federal guidelines are unconstitutional
and sentencing is left to the judge's discretion.

About 8,000 cases are pending appeal on sentencing issues, and more than
50,000 cases await sentencing in district courts, said McCampbell, who is
chairman of the U.S. Attorney General's Advisory Committee's Sentencing
Guidelines Subcommittee.

A paralyzed system Most sentencings in Oklahoma City federal court were
rescheduled in the first weeks after the Blakely decision.

"Essentially, the system has been paralyzed in the short term, with the
long-term implications yet to be determined," according to a survey
presented to the U.S. Senate Judiciary Committee.

Thousands of cases are resurfacing as convicts try to get long sentences
thrown out.

Michael Snider, the first person convicted in Oklahoma to argue a Blakely
defense, says his three-decade sentence should be reduced. He filed his
pending appeal with the Oklahoma City federal court this month.

In 1996, a jury found Snider, 39, guilty on six counts of making and
selling of methamphetamine. Snider received a 30-year prison term, which
included six years because the judge believed Snider was a conspiracy leader.

McCampbell said Blakely would not affect Snider's case because Supreme
Court precedent precludes the ruling from applying to cases that have
finished the appeals process.

Plea bargaining problem A major effect of the Blakely decision has been to
halt plea bargaining, said Tony Lacy, an assistant federal public defender
in Oklahoma City.

"That's the biggest problem right now," Lacy said. "With all the variables,
why would you plea and waive the right to appeal? The ambiguity of not
knowing what you're losing gives one great hesitation in signing a contract."

If plea bargains come to a halt, the federal court system could become
backlogged. In more than 95 percent of federal cases, defendants enter
guilty pleas.

Defense attorneys across the country say now is a perfect opportunity to
change draconian sentencing laws.

"We believe we have before us an opportunity, unprecedented since 1984, to
create a truly just and rational federal sentencing guidelines scheme,"
E.E. Edwards and Barry Scheck of the National Association of Criminal
Defense Lawyers wrote in a letter to Attorney General John Ashcroft and the
administrative chief of the U.S. federal courts, L. Ralph Mecham.

If the Supreme Court decides federal guidelines are unconstitutional, the
effect on American justice could be bigger than the 1966 Miranda ruling,
which reinforced the rights to remain silent and to have an attorney,
professor Johnson said.

"Miranda doesn't apply to every single federal conviction and many, many
state convictions the way Blakely does," Johnson said. "This is a much
bigger deal than a lot of the other high-profile cases that we think about
in the criminal justice system."