COURT LIMITS JUDGES ON RESENTENCING

Justices Said Facts of the Case Must Be Reviewed Before An Unremorseful
Criminal Gets More Time.

WASHINGTON - A bitterly divided Supreme Court yesterday barred judges
from unilaterally bumping up sentences for convicted criminals.

Instead, the justices said in a 5-4 decision, before a robber gets
more time for showing no remorse or a rapist draws a longer sentence
for being excessively cruel, a jury must find that those aggravating
factors were proved beyond a reasonable doubt.

The ruling extends the logic the court used in 2002 for death
sentences to all other crimes. That logic has its roots in a 2000
decision that said juries, not judges, needed to make all fact-finding
decisions that enhance penalties.

The Sixth Amendment right to a jury trial is "no mere procedural
formality," Justice Antonin Scalia wrote for the majority. "The
framers would not have thought it too much to demand that, before
depriving a man of... his liberty, the state should suffer the modest
inconvenience of submitting its accusation to" a vote of his peers.

The court overturned the conviction of a Washington state man who
pleaded guilty to kidnapping his estranged wife. The judge in his case
tacked three years onto a four-year term because he said Ralph Howard
Blakely Jr. had acted with "deliberate cruelty."

Even though state law permitted the judge to increase the sentence for
those reasons, the high court said that decision required additional
fact-finding that the Constitution reserves for juries, not judges.

Defense lawyers hailed the decision as the most important in more than
a decade, saying it represents a fundamental shift in power away from
prosecutors and toward juries.

"The Supreme Court, in this case, has breathed life back into the jury
trial," said Miami defense attorney David Markus. "This is a 9.0 on
the Richter scale for defense lawyers."

Attorneys said the ruling may force prosecutors to state up-front, in
jury trials or indictments, all the evidence they intend to use to
prosecute their cases, said Milton Hirsch, a prominent Miami defense
lawyer.

The Justice Department issued a statement saying it was reviewing the
ruling.

Joining Scalia in the majority were Justices John Paul Stevens, Ruth
Bader Ginsburg, David H. Souter and Clarence Thomas.

Dissenting were Chief Justice William H. Rehnquist and Justices
Anthony M. Kennedy, Sandra Day O'Connor and Stephen G. Breyer.

Three of the four dissenting justices wrote separately to take issue
with Scalia's thinking and decry the "damage" they believe the ruling
will inflict upon sentencing guidelines. The ruling will not lead to
more consistent sentencing, they argued; it will take courts back to a
time when sentencing was arbitrary and susceptible to racial and other
biases.

Since the 1980s, many states have tried to bring some consistency to
criminal sentences by setting up guidelines for judges. Many set out
reasons to enhance or diminish sentences and prohibit judges from
deviating from those reasons.

To signal her disagreement with the majority, O'Connor took, for her,
the unusual step of reading her dissenting opinion from the bench.

She said that under the court's ruling, any fact that could mean more
jail time is now considered an element of the crime. "Thus, facts that
historically have been taken into account by sentencing judges to
assess a sentence within a broad range... all must now be charged in
an indictment and submitted to a jury."

Presumably, O'Connor said, the ruling could also have an important
effect on federal sentencing guidelines, which also permit judges to
consider aggravating facts when meting out punishment.

Scalia said the ruling did not necessarily apply to the federal
guidelines, which were not directly at issue in the case, but Breyer
wrote that he was "uncertain" how to distinguish Washington state's
system from the federal one.