SENTENCING RULING RAISES CONCERNS

Federal Judges Forced To Give Lighter Jail Terms; Could Lead To Rewriting Of
Laws

WASHINGTON - U.S. District Judge Joseph R. Goodwin says criminal
sentencing is at the heart of his job, something that ``comes up
daily'' and consumes a lot of his time.

For almost 15 years, federal guidelines at least made the rules of
sentencing clear. Now they're in chaos, due to an unexpected Supreme
Court decision that has upset sentencing practices in Goodwin's
courtroom and in federal courts nationwide.

In Blakely vs. Washington, the justices on June 24 stripped judges of
their long-held power to increase sentences based on aggravating
factors, saying the Constitution reserves those determinations for
juries.

The ruling already is producing lighter jail terms. It could inspire
appeals by up to 250,000 inmates who were sentenced under the scheme
the Supreme Court rejected. It also could force U.S. attorneys to
rethink how they prosecute offenders, drag Congress into a messy
effort to rewrite federal sentencing laws and perhaps require
fast-track reconsideration of the issue by the high court.

History may first remember the Supreme Court term that just ended for
the justices' sharp criticism of the Bush administration's terrorism
detentions and its eloquent assertions about the pre-eminence of civil
liberties. History also will easily recall the court's failure to
settle squabbles over the Pledge of Allegiance and Vice President Dick
Cheney's secret energy task force.

But Blakely was the late-term surprise that -- by challenging the
entire federal-sentencing system -- could have more effect on everyday
crime and punishment issues than any high court ruling in 30 years.

Goodwin, for example, dropped a West Virginia drug dealer's sentence
from 20 years to 12 months last week. A judge in Maine cut another
dealer's prison stint from 19 years to six. In Utah, a judge knocked
three years off the jail term of a man who took pornographic pictures
of his 9-year-old daughter and another child.

``This is going to have far-reaching affects on all the cases that
come before us,'' Goodwin said. ``We'll definitely need more guidance
from the Supreme Court or the appeals circuits.''

In Blakely, the justices overturned a Washington state man's sentence
because a judge added nearly three years to his term by considering
factors that were related to, but not an essential part of, his
kidnapping conviction.

The justices ruled that a jury, rather than a judge, had to find that
those factors were proved beyond a reasonable doubt in order for them
to be considered in sentencing.

``It's definitely the most important criminal justice decision under''
Chief Justice William Rehnquist, said Doug Berman, an Ohio State
University law professor who's been chronicling the aftermath of
Blakely on a Web site, http://sentencing.typepad.com.

``In terms of the near-anarchy it's creating in the federal system and
the possibility in state systems,'' Berman said, ``the fallout is more
dramatic than anything I can even think of.''

In the first week after Blakely was decided, judges in nearly every
federal jurisdiction concluded that it demands a sea change in the way
they calculate sentences. Some, such as Goodwin, have begun writing
full-blown opinions when meting out sentences, begging for higher
courts to pursue Blakely's effect on federal sentencing.

Take the case of Ronald Shamblin, a methamphetamine maker whom Goodwin
had sentenced to 20 years in prison two weeks ago.

Based on the crime he pleaded guilty to, Shamblin was eligible for
only a 12-month sentence under federal guidelines. But the guidelines
also called for Goodwin to impose a lot more jail time for other
``relevant conduct'' to the crime: possession of a weapon, having
additional drugs that weren't part of the indictment, intent to sell
the drugs to a minor, being the leader of a major drug operation.
That's how Shamblin got 20 years.

But Shamblin's lawyers argued last week that Blakely made the sentence
illegal, because Goodwin, not the jury, concluded the facts that
raised their client's sentence above 12 months. Goodwin agreed, and
reduced the sentence.

In his opinion, Goodwin echoed frustrations shared by many judges over
the ``draconian'' nature of the federal sentencing guidelines. ``At
240 months, Shamblin's sentence represented much that is wrong about
the sentencing guidelines,'' he wrote. ``At 12 months, it is almost
certainly inadequate.''

The ripples from Blakely have inspired some to suggest that the
Supreme Court, which has adjourned until the first Monday in October,
might need to cut short its vacation to revisit the issue. Ordinarily,
it wouldn't consider a case involving Blakely's effects before next
winter.

But by then there'll be ``a flurry of litigation,'' said Beth
Brinkmann, a criminal defense specialist and partner at the Washington
law firm of Morrison & Foerster. ``They'll need to resolve it quickly.''