Supreme Court: Sentencing Guidelines
                           Advisory, Not Mandatory

Tony Mauro
Legal Times
January 13, 2005

In a splintered and complex decision that may throw federal criminal cases into short-term chaos, the Supreme Court on Wednesday took the bite out of the federal sentencing guidelines and may have handed back to federal judges the discretion in sentencing they lost 20 years ago after the guidelines were enacted.

In a 5-4 vote in United States v. Booker and United States v. Fanfan, the justices ruled that the Sixth Amendment right to a jury trial requires that current federal sentencing guidelines be advisory, not mandatory. The Court concluded that its 2004 decision in Blakely v. Washington, which said that state juries and not judges should decide the factors that increase sentences, also applies to the federal system. The federal system originally gave judges power to decide sentencing facts such as the amounts of drugs or severity of the crime involved.

The mandatory nature of the guidelines created the constitutional problem, the majority said. And the best way to cure the problem, according to a separate majority, is to make the guidelines advisory only.

The ironic result, according to several commentators Wednesday, is that in its effort to preserve the right of a jury trial, the Court at least temporarily has given judges more discretion in sentencing by making the guidelines merely voluntary.

"You can argue that, after today, judges have the greatest sentencing power they've ever had in the history of the republic," said sentencing expert Frank Bowman III, professor at Indiana University School of Law. The additional power exists because judges are no longer bound by the minimum and maximum sentences once called for under the federal guidelines.

Wednesday's ruling "literally revolutionized federal sentencing law, turning the clock back nearly 20 years to the days when federal judges had virtually unlimited discretion in imposing sentences," said Craig Margolis, a lawyer at Vinson & Elkins' office in Washington, D.C.

Christopher Wray, head of the Criminal Division of the Justice Department, which defended the guidelines before the Court, expressed regret about the decision and said that by making the guidelines advisory, the Court increased the risk that "sentences across the nation will be wildly inconsistent."

To some, the ruling was a welcome trimming back of the power of the guidelines system that judges and others have grumbled about for years as an infringement on their powers.

"Guidelines are just that again -- guidelines," said Paul Kamenar of the Washington Legal Foundation, adding that the justices had reached a good compromise.
"The federal sentencing guidelines shifted power from the judiciary to prosecutors," said Tim Lynch of the libertarian Cato Institute. "The Booker ruling will have the effect of shifting power back to the judiciary. The net effect will be an improvement in the administration of justice, because we are more likely to find wisdom and prudence from impartial judges than from partial prosecutors."

The ruling spanned 124 pages and included writings by six of the nine justices. Following the high court's Blakely decision in June, the Court expedited review of the cases in October, after a summer of confusion in lower courts over whether Blakely applied to the federal guidelines. The sprawling, at times contradictory, opinions give credence to suspicions of sharp splits among justices that kept the decision from being issued until three months after it was argued. Chief Justice William Rehnquist, who heard arguments in the case before being diagnosed with cancer, participated in the voting in the case.

"Fairness and reliability protected by the right to a jury trial ... has always outweighed the interest in concluding trials swiftly," wrote Justice John Paul Stevens for a majority that included Antonin Scalia, David Souter, Clarence Thomas and Ruth Bader Ginsburg.

The ruling clearly contemplates that Congress, which first enacted the guidelines in 1984 to reduce sentencing disparity, will have to revisit its legislative design.

"Ours, of course, is not the last word: The ball now lies in Congress' court," wrote Justice Stephen Breyer for a separate 5-4 majority that said making the guidelines advisory would be the only way to reconcile the intent of Congress with the Court's determination that the guidelines run afoul of the Sixth Amendment. Ginsburg, who was in the majority on the constitutional issue, switched sides to give Breyer a majority on the remedy.

Congressional leaders responded quickly to the decision Wednesday. Sen. Arlen Specter, R-Pa., who chairs the Senate Judiciary Committee, said, "I intend to thoroughly review the Supreme Court's decision and work to establish a sentencing method that will be appropriately tough on career criminals, fair, and consistent with constitutional requirements."

Sen. Patrick Leahy, D-Vt., the ranking minority senator on the committee, urged caution: "Congress should resist the urge to rush in with quick fixes that would only generate more uncertainty and litigation and do nothing to protect public safety."

Breyer said Wednesday's ruling in Booker and Fanfan would have to be applied to "all cases on direct review" and said appeals courts could use "ordinary prudential doctrines" to weed out meritless appeals. But some lawyers and commentators predicted waves of litigation involving past and pending cases, as well as a reinvigoration of judicial discretion and power over sentencing.

"We are likely to have lots and lots of litigation over what this means for on-going cases," said Ohio State University law professor Douglas Berman, whose Sentencing Law and Policy blog has tracked post-Blakely developments in detail. "Appellate courts have enormous sentencing powers in the days ahead."

BREYER'S ROLE APT TO RAISE NEW QUESTIONS

Breyer’’s pivotal role in the decision Wednesday and his interpretation of the intent of Congress are likely to raise new questions about whether he should have participated in the case. As a Senate aide, Breyer helped draft the sentencing law, and he helped craft the guidelines as a member of the Sentencing Commission before joining the high court. Before the arguments, some judicial ethics experts suggested these past roles left Breyer with a personal stake in the outcome that should have led him to recuse.

Practitioners were divided over the impact of the decision in courthouses nationwide.

"In the short and perhaps medium term, chaos will reign in federal courthouses as judges decide how to exercise their new found discretion in sentencing, and prosecutors and defense lawyers argue their positions," said former federal prosecutor Kirby Behre, now with the D.C. office of Paul, Hastings, Janofsky & Walker.

"I don't think the sky is going to be falling," said Carmen Hernandez, vice president of the National Association of Criminal Defense Lawyers. She said that in states that have advisory guidelines rather than mandatory ones, 85 percent of sentences "end up being the same."

As if to underline the point, Wisconsin Federal Public Defender Dean Strang, who represented Freddie Booker in the case ruled on Wednesday, said his client "unfortunately may end up with the very same sentence." Booker, convicted on drug charges in 2003, saw his sentence increased by eight years to 30 years because a judge, not a jury, determined the amount of drugs Booker sold.

That enhanced sentence went beyond what the guidelines would have dictated on the facts found by the jury, Strang said, but the drug statute itself allows for sentences from 20 years to life. Hence, in the wake of Wednesday's ruling making the guidelines advisory, the judge could still sentence Booker to 30 years because the law allows it -- even if the guidelines did not.

Gregory Wallance, a partner at Kaye Scholer in New York, said the ruling will also have an impact on prosecutors. "In all likelihood, the use of the guidelines as advisory still means that prosecutors now have a heavier burden of proving sentencing facts to a jury beyond a reasonable doubt." Wallance said.

"The opinion," he added, "also very clearly kicks the sentencing ball back to Congress to decide whether to keep the guidelines as advisory only, throw them out altogether, or put in something new."

Legal Times senior reporters Vanessa Blum and T.R. Goldman contributed to this report.

http://www.nylawyer.com/news/05/01/011205b.html

    New Fight Over Controlling Punishments Is Widely Seen

By Carl Hulse and Adam Liptak
New York Times
January 13, 2005

WASHINGTON, Jan. 12 - Lawmakers and legal experts predicted on Wednesday that the Supreme Court decision returning discretion on sentencing to judges would renew the struggle between Congress and the judiciary for control over setting criminal punishment.

"This is a story about a fight between branches of the federal government for sentencing power," Frank O. Bowman, a law professor at Indiana University, said.

Members of the House and Senate judiciary panels said that the decision, which they had been anticipating, was highly likely to set off a legislative fight over the extent to which Congress should be able to require judges to impose specific prison terms.

"As the court recognized, the ball is now in Congress's court," said Senator Orrin G. Hatch, the Utah Republican who characterized himself as disappointed by the decision but not surprised. "We will need to examine our options carefully."

Conservatives, particularly in the House, have been highly critical of some federal judges for handing down sentences lighter than those called for in the guidelines and have moved to limit that discretion.

Republicans on the House Judiciary Committee led the successful effort last year to require the United States Sentencing Commission to provide Congress with the names of federal judges who broke from the guidelines. Representative Tom Feeney, the Florida Republican who wrote that provision, called the court ruling an "egregious overreach."

"The Supreme Court's decision to place this extraordinary power to sentence a person solely in the hands of a single federal judge - who is accountable to no one - flies in the face of the clear will of Congress," Mr. Feeney said in a statement.

As they began to digest the decision, other lawmakers in both parties said they expected that hearings on sentencing guidelines would be quickly convened. Senator Arlen Specter, the Pennsylvania Republican who is the new chairman of the Senate Judiciary Committee, said he intended to "thoroughly review the Supreme Court's decision and work to establish a sentencing method that will be appropriately tough on career criminals, fair and consistent with constitutional requirements."

Senator Jeff Sessions, Republican of Alabama, a former federal prosecutor, called the opinion a disaster, saying, "The challenge will now be to determine what the core complaint of the five members of the court is and see if we can recreate the guidelines in a way that will meet the court's test."

Democrats urged caution.

"Congress should resist the urge to rush in with quick fixes that would only generate more uncertainty and litigation and do nothing to protect public safety," Senator Patrick Leahy of Vermont, senior Democrat on the Judiciary Committee, said.

Senator Edward M. Kennedy, Democrat of Massachusetts, said, "The last thing our criminal justice system needs is rash action by Congress to impose a comprehensive mandatory sentencing regime on federal judges."

Representative Adam B. Schiff, a California Democrat and former federal prosecutor who sits on the House panel, predicted that Republicans eager to limit the authority of judges in sentencing would seize on the decision.

"The professional judiciary haters in the Congress are going to have a lot of grist for the mill," said Mr. Schiff, who added that the decision was an opportunity for Congress to examine the guidelines "and see if we can come up with something better, not because we want to, but because we have to."

Judges, who have increasingly chafed under Congressional restrictions on showing leniency, praised the decision.

"I'm really elated, and I think most judges will be, too," Judge Jack B. Weinstein of Federal District Court in Brooklyn said. "It gives us the discretion to deal with individual cases without being unnecessarily harsh. This is now, if Congress leaves it, a marvelous system."

That glee may be short lived.

"I think they will come to regret it," Professor Bowman said of the decision. "It is the one outcome that is most likely to provoke a response from both the Department of Justice and Congress that will provide a result that most justices will dislike."

The Justice Department response on Wednesday was cautious.

"We are disappointed that the decision made the guidelines advisory in nature," Assistant Attorney General Christopher A. Wray said in a statement. "District courts are still required to consult the federal sentencing guidelines, and any sentence may be appealed by either defense counsel or prosecutors on the grounds that it is unreasonable. To the extent that the guidelines are now advisory, however, the risk increases that sentences across the country will become wildly inconsistent."

The statement suggests, legal scholars said, that federal prosecutors will wait to gauge the practical impact of the decision before asking Congress to act. Federal judges said they would continue to take the guidelines seriously.

"I personally will try to be completely faithful to the opinion," said Chief Judge William G. Young of Federal District Court in Boston. "Which means I will consider the advice of the guidelines and consider it seriously."

John S. Martin Jr., a federal judge in New York who resigned in 2003 over what he called "a sentencing system that is unnecessarily cruel and rigid," reacted with something like glee.

"This is an ideal sentencing system," Mr. Martin said, "with guidelines that are advisory, with appropriate review."

The decision will have enormous practical consequences no matter what Congress does. Some 60,000 defendants a year are sentenced in federal courts. For prisoners who have not exhausted appeals, prosecutors and defense lawyers can seek new sentencings.

"There will be a flood of litigation," Nancy J. King, a law professor at Vanderbilt University, said. "It opens up a new can of worms."

Defense lawyers called the decision sound and urged Congress to move cautiously.

"For 20 years, federal courts have been forced to impose unjust, irrational sentences based on unproven allegations, speculative calculations and the worst kinds of hearsay," Barry Scheck, president of the National Association of Criminal Defense Lawyers, said. "Congress should welcome this opportunity to create a fair and just federal sentencing system, not a quick fix."

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