A possible revolution in the federal criminal justice system will be on the agenda when the Supreme Court opens its new term tomorrow.
In a rare two-hour afternoon oral argument session, the justices will consider whether the federal sentencing guidelines -- a manual of 400-plus pages meant to ensure that federal courts give defendants across the country approximately equal punishments for similar crimes -- can be reconciled with the Constitution.
The court is hearing the case on an expedited schedule in response to the uproar and confusion created by a 5 to 4 ruling it issued June 24, just before leaving for summer recess.
In that case, Blakely v. Washington, the court struck down Washington state's sentencing guidelines, which, like the federal guidelines, permit judges to boost sentences based on their own post-conviction fact-finding, rather than relying only on facts admitted by the defendant or found by a jury.
That, the court ruled, violates the right to a jury trial guaranteed by the Sixth Amendment.
Though the court said in Blakely that it did not address the federal guidelines, the similarities between Washington's system and the federal system were such that defense lawyers across the country immediately began bombarding courts with Blakely challenges to their clients' sentences.
Lower courts have issued differing rulings in response, and some federal prosecutors have felt obliged to redraft indictments to make sure they conform to Blakely.
"It looks like a Number 10 earthquake to me," Justice Sandra Day O'Connor, who dissented in Blakely, told a conference of federal judges in July.
Although determining the precise magnitude of the Blakely aftershocks is the court's first major item of business, Blakely is by no means the only case of potential national significance on the court's docket.
On Oct. 13, the court will hear arguments in Roper v. Simmons, No. 03-633, a challenge to the constitutionality of the death penalty for persons who commit crimes while younger than 18.
The court has barred capital punishment for those younger than 16, but it ruled in 1989 that capital punishment for 16- and 17-year-old defendants does not constitute "cruel and unusual punishment."
However, the court may decide that a "national consensus" has now formed against imposing the ultimate penalty against minors -- just as it did in 2002 with respect to the death penalty for moderately mentally retarded offenders.
It is nearly certain that the court's two swing voters, Justices O'Connor and Anthony M. Kennedy, will determine the outcome. Four members of the court -- John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- have already declared in a published opinion that they believe the death penalty for juveniles should be abolished.
Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas opposed the 2002 mental retardation ruling, which opponents of capital punishment for juveniles are relying on to make their case.