HIGH-COURT RULING CREATES TURMOIL OVER SENTENCING

In a blow to Washington's criminal-justice system, the United States
Supreme Court ruled yesterday that judges are not permitted to
increase sentences based on their own estimation of the severity of a
crime.

Although the full implications are not yet clear, Jeffrey Fisher, the
Seattle lawyer who won the case, said "there are hundreds, if not
thousands, of people with these kinds of sentences."

Mark Roe, Snohomish County chief criminal deputy prosecutor, agreed
that the decision will have a dramatic impact. "It's going to affect
cases everywhere. We don't think this is a good idea at all."

Legal experts in the state say it's too early to know whether the
decision will apply retroactively and force many offenders to be
resentenced.

The 5-4 opinion stemmed from the kidnapping conviction of a Grant
County man who got three years tacked on to his sentence by a judge.
The decision throws out part of a 20-year-old sentencing law that set
a standard range for every crime but allowed judges room to tailor the
penalty for the individual defendant.

For example, judges could pump up the punishment if they believed the
offender used deliberate cruelty or targeted particularly vulnerable
victims.

Not anymore.

The court ruled that these "exceptional sentences" are
unconstitutional because the judge makes the decision alone: Juries
don't get to hear the facts and prosecutors don't have to prove them
beyond a reasonable doubt.

"The Framers would not have thought it too much to demand that, before
depriving a man of three more years of his liberty, the State should
suffer the modest inconvenience of submitting its accusation to
'unanimous suffrage of twelve of his equals and neighbors,' " Justice
Antonin Scalia wrote in the majority opinion.

In a strongly worded dissenting opinion, which she read from the bench
in what was, for her, an unusual display of disagreement with the
majority, Justice Sandra Day O'Connor said "the practical consequences
of today's decision may be disastrous."

"If the choice is between adopting a balanced case-by-case approach
that takes into consideration the values underlying the Bill of Rights
as well as the history of a particular sentencing reform law, and
adopting a rigid rule that destroys everything in its path, I will
choose the former," she wrote.

Federal sentencing guidelines were established in 1987, and Washington
is one of nine states that have similar systems. The Bush
administration supported Washington in the case, out of concern that
federal guidelines be kept intact.

Other Recent Changes Here

The ruling follows a Supreme Court decision in March that created
additional hurdles for prosecutors by tightening Washington's rules
for admitting hearsay evidence.

Earlier this month, Washington's Supreme Court set aside a murder
conviction in the death of a baby, the first application of a
controversial 2002 ruling that prohibited murder convictions in cases
where death was the unintentional result of an assault. (The court
said manslaughter was the more appropriate charge in those cases.)

Yesterday's decision involved Ralph H. Blakely Jr., who entered an
Alford plea to reduced charges of second-degree kidnapping and
second-degree assault. In making an Alford plea, a defendant does not
admit guilt but concedes that if the case were to go to trial, a jury
would likely find him guilty.

The standard sentence was 4 to 4-1/2 years, and that's what
prosecutors asked for.

But after the judge heard from the victim, Blakely's estranged wife,
he hammered Blakely with 7-1/2 years.

The judge did so because he found that Blakely acted with "deliberate
cruelty."

According to court documents, Blakely bound his wife with duct tape in
October 1998 and forced her at knifepoint into a wooden box in his
pickup. Next came threats with a shotgun. Finally, he told their
13-year-old son that his mom would be shot if he didn't follow them in
another car.

The boy later escaped. Blakely drove his wife all the way from Grant
County to Montana before he was arrested.

But no jury heard those facts, so they weren't proven beyond a
reasonable doubt as far as the Constitution is concerned.

In his opinion, Scalia said that Blakely was, in effect, sentenced for
first-degree kidnapping after being convicted of second-degree
kidnapping. Because of this, the majority said the defendant was
denied a "fundamental constitutional right of jury trial." The court
did not consider whether the punishment was too harsh, just whether
the decision-making process was constitutional.

For an exceptional sentence to be imposed, according to the opinion,
either a jury must decide whether there are aggravating factors that
permit the sentence, or the defendant will have to admit to them in
his plea bargain.

"My understanding is until the Legislature steps in and puts a new and
constitutional system in place for finding aggravating facts, the
longest sentence any defendant can get is the top of the standard
range," Fisher said. "The new system would allow him to challenge the
fact in front of a jury instead of leaving it up to the judge."

John Junker, a University of Washington law professor, said he thinks
the changes will be made.

"The Legislature has never been very unwilling to accommodate the
prosecutors," he said.

And he doesn't think it will be too difficult to force a defendant to
admit to aggravating factors if he wants to make a plea bargain.

And as for Blakely's sentence, "if the jury had heard what the judge
heard," they would likely have come down the same way the judge did,
Junker said.

Roe, on the other hand, doesn't think juries are equipped to make
these kinds of decisions. "Now we will ask jurors, many who are
serving on their one and only case, to find whether cases are
exceptional," he said.

A Retroactive Ruling?

Opinions are mixed on whether this decision will apply retroactively
to offenders who have already been sentenced.

Fisher and Junker say there's a good argument that it should apply to
cases decided since June 2000, when a related ruling came down.

But Dan Donohoe, of the King County prosecutor's office, said "we are
optimistic" that it won't be applied retroactively.

Scalia was joined in the majority by justices John Paul Stevens, David
Souter, Clarence Thomas and Ruth Bader Ginsburg. That majority
includes two of the court's most liberal members, Stevens and
Ginsburg, and two of the most conservative, Scalia and Thomas.

On the other side were conservative Chief Justice William Rehnquist,
moderate conservatives Sandra Day O'Connor and Anthony Kennedy, and
relative liberal Stephen Breyer.

Material from Times reporter Jennifer Sullivan, the Washington Post
and The Associated Press was included in this report.

[sidebar]

THE BLAKELY CASE

Rancher Ralph Blakely, then 62, abducted his estranged wife and their
son Oct. 26, 1998, in Warden, Grant County. He packed Yolanda Blakely,
42, into a wooden box.

The couple's son, then 13, said truckers at a gas station intervened
on his behalf and his father drove off with his wife in the box.

He was arrested two days later near Three Forks, Mont. Yolanda Blakely
had been injured slightly; her hands and mouth had been bound.

Ralph Blakely entered an Alford plea to reduced charges of
second-degree kidnapping and second-degree assault.

The judge, noting especially brutal aspects of the crime, sentenced
Blakely to 7 1/2 years in prison.

That "exceptional" term is less than the maximum called for by the
state's kidnapping law, but more than the "standard" maximum
prescribed by a state sentencing-guideline law.

Blakely argued that the question of enhancing his sentence beyond the
guidelines should have been put to a jury.