JURY ROLE IN RAISING SENTENCES AFFIRMED RULING MAY AFFECT STATES' PROCEDURES

A bitterly divided Supreme Court ruled yesterday that only juries, not
judges, may increase criminal sentences beyond the maximums suggested
by statutory guidelines, a decision that throws into doubt sentencing
procedures used by nine states and possibly the federal government.

By a vote of 5 to 4, the court said a trial judge in Washington state
violated the Constitution when he sentenced a convicted kidnapper to
90 months in prison rather than the 53-month maximum prescribed by
state law. The judge was following a provision of the law that permits
judges to impose higher sentences when they find that the facts
warrant harsher punishment.

But the court said the Sixth Amendment guarantee of a jury trial in
felony cases means that any facts that would result in a sentence
above the range of sentences specifically mentioned in the law must be
found by a jury beyond a reasonable doubt.

"When a judge inflicts a punishment that the jury's verdict alone does
not allow . . . the judge exceeds his proper authority," Justice
Antonin Scalia wrote for the majority.

The ruling was the latest application of the court's 2000 ruling in
Apprendi v. New Jersey, in which the court roiled criminal law by
holding for the first time that factual findings a court uses to
increase sentences must be made by a jury rather than by a judge.

The court used Apprendi in 2002 to strike down state laws that call
for judges, rather than juries, to decide between life imprisonment
and death in capital cases. But in a separate case yesterday, the
court limited the impact of that ruling by declaring that it would not
apply retroactively.

The decision yesterday in Blakely v. Washington, No. 02-1632, may be
Apprendi's most significant consequence yet. It poses a direct
challenge to the past quarter-century's worth of sentencing reform at
both the state and federal levels.

In response to concerns that similar crimes were being punished much
differently by judges in different courts, the federal government and
some states replaced previous sentencing systems, under which juries
determined defendants' guilt or innocence and judges determined
sentences pretty much as they saw fit.

The new sentencing guidelines typically established a range of prison
time for various crimes, with judges permitted to "depart upward" from
that range if they find "aggravating factors" deserving of harsher
punishment.

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.

"If defendants asserted the right this decision gives them, a very
large fraction of the sentences in federal criminal cases and probably
a sizable number of criminal cases in states with state sentencing
guidelines would be unconstitutional," said William J. Stuntz, a
professor of law at Harvard University who specializes in criminal
issues.

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 that "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.

O'Connor listed Alaska, Arkansas, Florida, Kansas, Michigan,
Minnesota, Oregon and Pennsylvania as states with systems similar to
Washington's.

O'Connor and a fellow dissenter, Stephen G. Breyer -- who participated
in drafting the federal sentencing guidelines before joining the
Supreme Court -- predicted that the cost to the states of complying
with the court's ruling would spell the end of sentencing reform.

"The simple fact is that the design of any fair sentencing system must
involve efforts to make practical compromises among competing goals,"
Breyer wrote. "The majority's reading of the Sixth Amendment makes the
effort to find those compromises -- already difficult -- virtually
impossible."

Scalia noted that the court's ruling does not necessarily apply to the
federal guidelines, which were not directly at issue in the case. But
Breyer wrote that he is "uncertain" how to distinguish Washington
state's system from the federal system.

Chief Justice William H. Rehnquist and Justice Anthony M. Kennedy also
dissented.

In response to Breyer, Scalia wrote that "our decision cannot turn on
whether or to what degree trial by jury impairs the efficiency or
fairness of criminal justice."

Scalia suggested that sentencing guidelines are unfair to defendants
such as the kidnapper in Washington, Ralph H. Blakely Jr. Blakely
pleaded guilty in return for the prosecutor's recommendation of a
53-month sentence, only to have the deal scrapped by a judge.

Increased costs could be mitigated, Scalia said, if prosecutors
negotiate plea agreements in which defendants waive their right to
jury sentencing.

"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 [a
jury] rather than a lone employee of the state," Scalia wrote.

His opinion was joined by Justices John Paul Stevens, Clarence Thomas,
Ruth Bader Ginsburg and David H. Souter.

Seattle defense lawyer Jeff Fisher, who represented Blakely, said the
decision will strengthen defendants' bargaining power.

"I suppose it will cost [states] some money," he said. "Obviously,
abiding by the Constitution costs money in various ways -- but not an
extraordinary amount of money."