Legal Quagmire

HIGH COURT RULING UNLEASHES CHAOS OVER SENTENCING

Judges, Prosecutors Put Aside Federal Guidelines, Fearing They're
Unconstitutional

'Boiling Frustration' On Bench

When the Supreme Court last month struck down tough sentencing guidelines
used in Washington state, Justice Sandra Day O'Connor dissented. She feared
the ruling would wreak havoc on the nation's federal courts.

She was right. Although the 5-4 ruling technically affects only one state's
court system, the Justice Department is forcing prosecutors of federal
crimes to draft indictments and sculpt plea bargains in compliance with it.
That has thrown into confusion the sentencing of nearly 250 federal
defendants every day. And tens of thousands of old cases are up in the air
again as defense attorneys try to get long sentences thrown out.

Now Congress may step in with a bill that might fix the problem temporarily
while legislators, prosecutors and the courts search for a permanent
solution. "The criminal justice system has begun to run amok," Orrin Hatch,
chairman of the Senate Judiciary Committee, said yesterday.

The June 24 Supreme Court ruling said that any factor increasing a criminal
sentence must be admitted by the defendant in a plea deal or proved to a
jury. The ruling came in the case of a Washington state man, Ralph H.
Blakely Jr., who pleaded guilty to kidnapping his estranged wife. That
crime in Washington state carries a maximum sentence of four years and five
months. But the judge tacked on another three years and a month, based on
the finding that Mr. Blakely acted with "deliberate cruelty." The Supreme
Court said the tougher sentence violated the defendant's Sixth Amendment
right to a jury trial.

The Blakely ruling has exposed concerns about the fairness of 20-year-old
guidelines for sentencing federal defendants and reignited the question of
how much authority Congress should have to mandate federal prison sentences.

Prosecutors can boost a defendant's recommended sentence under the
guidelines by introducing examples of "relevant conduct" that, while not
proved in court, appear to increase the gravity of the offense. Judges can
ignore the recommended sentence, but few want to face the likelihood of
being overturned on appeal. Long before Blakely, many federal judges were
rebelling at what they saw as congressional encroachment on their turf. And
defendants complained that they were handed mega-sentences without ever
having a chance to challenge the facts that underpin them.

The Supreme Court's ruling has given new life to these protests.
Lower-court decisions in the last few weeks have differed over whether the
high court's ruling applies to federal cases. But there's general consensus
that the federal justice system will be in major disarray if the Supreme
Court or Congress doesn't provide a clear answer soon.

On Monday, a New York federal court of appeals, warning of "major
disruption" in federal courts, called on the Supreme Court to decide the
issue quickly. In an unusual unanimous ruling, it said some 220,000
sentences imposed since 2002 are in dispute and added that "many thousands
of future sentences may be invalidated."

Even if the Supreme Court decides that the federal guidelines are
unconstitutional, it isn't clear whether it would make the ruling
retroactive. Legal experts say it might apply to cases where appeals are
still pending but not to those in which appeals have been exhausted.

Confusion extends to the Justice Department in Washington. Since the
Blakely ruling, it has argued that the federal guidelines are still
constitutional, but it is now telling federal prosecutors to comply with
the ruling in case the Supreme Court rules otherwise. At first Justice
Department officials urged Congress to stay out of the dispute. But in the
last few days some officials have come to support legislation for an
interim fix until the Supreme Court rules, according to people who have
taken part in discussions on sentencing policy. The department fears that
if judges are left to issue sentences as they see fit -- without the
pressure to consider "relevant conduct" -- federal prosecutors would lose
their leverage over defendants.

"The federal criminal justice system is in chaos," says Frank O. Bowman
III, a former federal prosecutor who is now a law professor at Indiana
University.

The roots of the current debate lie in the 1984 Sentencing Reform Act,
which Congress designed to eliminate disparity in sentencing by federal
judges. Previously prosecutors and defendants would "shop" for a judge
whose proclivities were in their favor. The law created a Sentencing
Commission with seven members, the majority of them judges, to draw up
guidelines. They went into effect in 1987.

The guidelines aren't law. But they aren't mere suggestions either. Judges
who fail to follow them are likely to be overruled if prosecutors appeal.

Even the guidelines weren't tough enough for many members of Congress. So
on occasion over the past two decades, Congress has passed laws setting
mandatory minimum sentences for specific crimes, especially those involving
drugs. In those cases, judges have absolutely no discretion. The
mandatory-minimum laws are especially popular in election years, when
legislators can use them as evidence that they are tough on crime.

Tension between the Sentencing Commission and a Congress determined to get
tougher on crime worsened in the late 1990s. Commissioners, using their
power to set guidelines, tried to reduce the huge sentencing disparity
between crack and powder cocaine. They believed the disparities favored
whites over racial minorities. But Congress opposed easing penalties on any
drug offense. In one case, it blocked a commission effort to limit
sentences for women used as drug couriers by boyfriends or husbands.

In 2002, James Sensenbrenner, a Wisconsin Republican and chairman of the
House Judiciary Committee, started a crackdown on federal judges who gave
out lighter sentences than the guidelines prescribed. This is known as
"departing downward" from the guidelines. Florida Rep. Tom Feeney called it
a "longstanding and increasing problem," although others call the practice
rare.

Last year, led by Mr. Sensenbrenner, Congress passed the Feeney Amendment.
The law restricted judges' ability to depart downward from certain
guidelines, called for appeals courts to review those who do and ordered
the Justice Department to monitor departers. It also changed the makeup of
the Sentencing Commission, stipulating that only three of its seven members
should be judges. That effectively gave judges less of a say in setting
guidelines.

The Feeney Amendment caused "boiling frustration" among federal judges, in
the words of Indiana University's Mr. Bowman. The judges saw it as a new
invasion of their turf by the legislative branch. Supreme Court Chief
Justice William Rehnquist, in his report on the federal judiciary to
Congress last January, asserted that Feeney could "intimidate individual
judges" and threaten judicial independence.

Marc L. Miller, a law professor at Emory University in Atlanta, says Feeney
and other incursions have produced "open warfare between key actors in the
sentencing system." Judges have fought to defend their discretionary
powers, sometimes in creative ways. U.S. District Judge Jack Weinstein of
Brooklyn has been videotaping all of his sentencing proceedings so that
when an appeals court reviews his downward departures, it can view
defendants on tape to get a feel for their character.

In Boston, U.S. District Judge Nancy Gertner tried to help a drug
defendant, who she feared would get an overly stiff sentence, work the
system to his advantage. She invited the man to plead guilty to six counts
of distributing cocaine. That would give him credit for "acceptance of
responsibility" when the guidelines were set. But she ruled he could go to
trial on a separate count of conspiracy, which carried a stiff mandatory
sentence and which she surmised he had a chance of beating. "The government
is in the charging business, but this court is in the justice business,"
Judge Gertner wrote.

In federal courts, more than 95% of defendants plead guilty, largely
because guidelines give them credit for doing so. But a guilty plea isn't a
guarantee of lenient treatment. The guidelines also take into account a
range of factors cited by a probation officer.

These court officers have taken on the role once reserved for judges, using
their pre-sentencing investigations to tally "points" that determine the
fates of defendants. A long-ago arrest for drunken driving or drug
possession can increase prison time because a criminal history increases
the number of points. Even charges for which a defendant was acquitted can
be thrown into the mix.

The worst situation for a defendant is presenting a vigorous defense at
trial and being found guilty -- as Jamie Olis, a midlevel executive at
Dynegy Inc., discovered. His boss and another employee pleaded guilty to
charges that promised to get them fewer than five years in prison. Mr. Olis
went to trial and was convicted.

His attorney, David Gerger, believes that Mr. Olis would have received a
sentence of six months or less if the judge had only considered the crime
itself. But the guidelines dictated that the judge take into account
exacerbating factors such as the number of people Mr. Olis harmed and how
much money was lost because of his fraud. While such numbers are almost
impossible to know for sure, the judge considered testimony at his trial
and the probation officer's report -- neither of which Mr. Olis had a full
chance to rebut. Mr. Olis ended up with a 24-year sentence, which he is now
appealing as a result of the Blakely decision.

With Blakely threatening to render the guidelines moot, Congress and the
Justice Department want to prevent judges from drastically slashing
defendants' sentences, as some have done in recent weeks.

Some in Congress are backing a proposed fix from Mr. Bowman, the Indiana
University law professor. He has recommended to both the Sentencing
Commission and the Senate Judiciary Committee that Congress take the top
off existing guideline ranges, replacing them with the legally prescribed
maximum for the crime. As in the pre-1987 system, judges wouldn't have to
give a justification for slapping a tough sentence on defendants, so long
as it was below the legal maximum.

"Raising the penalty ceiling puts the prosecutor in even better position to
bargain with a defendant and get longer sentences," worries William Stuntz,
a professor of criminal law at Harvard Law School.

At a Senate Judiciary Committee hearing yesterday, Mr. Hatch, the committee
chairman, said legislation is being crafted to mirror Mr. Bowman's
proposal. The practical result of this, warn defense lawyers, is that
judges could hand out widely disparate sentences for similar crimes, the
same problem that the guidelines were meant to cure in 1987. If the range
of sentences permitted by the guidelines for a particular defendant was
previously, say, 47 to 65 months, the range could now become 47 to 120 months.

Yesterday judges and the Justice Department's representative urged the
Senate committee to move slowly in implementing any legislative fix until
the Supreme Court clarifies its stance on whether the Blakely principle
applies to federal courts.

Meanwhile Mr. Sensenbrenner has been pushing for a series of mandatory
measures that raise sentences for drug crimes. Increasingly, some judges
and legal-reform advocates see his efforts as muddying the separation of
powers between Congress and the judiciary.

U.S. District Judge Paul G. Cassell of Utah, who was the first judge to
declare the federal sentencing guidelines unconstitutional because of
Blakely, may be gearing up to make mandatory minimums the next criminal
issue on the Supreme Court's agenda. The conservative judge has called for
abolition of mandatory minimums. He is currently presiding over the case of
a man who faces a 611/2-year prison term for a drug crime due to
mandatory-sentencing laws. On Monday, he ordered lawyers for both sides in
the case to brief him on how it might be affected by the Blakely decision
and suggested that the defendant might try using the decision to challenge
his long sentence.

Mr. Sensenbrenner is unapologetic. "The framers [of the Constitution] gave
us oversight," he explained in a recent interview. "The fact that judges
have lifetime appointments gives them the independence they need, but
Congress has the responsibility to watch the judiciary."

[Sidebar]

CRIME AND PUNISHMENT

Milestones in federal sentencing rules:

* 1984: Congress creates U.S. Sentencing Commission to standardize sentences.

* 1987: First sentencing guidelines created by commission.

* 1995: Commission members try to change cocaine sentences, but Congress
says no.

* 2003: With Feeney Amendment, Congress cracks down on judges who give
lighter sentences.

* June 2004: Supreme Court rules in state case, Blakely v. Washington, that
judges can't use information in sentencing not heard by jury or admitted to
by defendant.

* July: Judges begin ruling that Blakely applies to federal courts,
undermining federal sentencing guidelines.

Source - WSJ research