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Supreme Court to Consider Federal Sentencing Guidelines

Though judges increasingly complain that the guidelines limit their ability to tailor justice to individual cases, they have largely cured the inequities that Frankel identified.

But in 2000, the Supreme Court decided Apprendi v. New Jersey, in which the court struck down a 12-year state sentence for a gun crime because it had been increased from 10 years based only on a judge's finding that the crime had been motivated by racial bias.

Other than the fact of a prior conviction, a five-member majority of the court announced in an opinion by Stevens, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

At the time, Breyer, who played a role in developing the guidelines as a Senate aide and federal appeals judge, predicted that Apprendi would destroy them. And with the liberal-conservative alliance on the court that voted for Apprendi -- Stevens, Scalia, Souter, Thomas and Ginsburg -- sticking together in Blakely, that prediction came true.

While Breyer, O'Connor and others protest that Blakely's benefit to defendants is far outweighed by the cost in legal disruption, opponents of the guidelines insist that whatever equity in sentencing they achieved was at the expense of defendants' right to face a jury of their peers.

Judges must only conclude that sentencing "factors" have been proved by a preponderance of the evidence, rather than the jury's tougher "beyond a reasonable doubt" standard.

This unduly increases the leverage of prosecutors, defense attorneys argue, giving them the upper hand in plea negotiations, through which about 97 percent of the 65,000 federal convictions in fiscal 2002 were achieved. In their view, the ultimate impact of Blakely will simply be a shift in favor of defendants during plea bargaining.

"Given past experience, there is no reason to believe that Blakely-specific indictments will cause an increase -- much less a catastrophic increase -- in trials," the National Association of Federal Defenders told the court in a friend-of-the-court brief. "Rather, the more specific allegations give the parties specific details with which to reach successful compromise and negotiations."

But, in its brief defending the guidelines, the Bush administration argues that Blakely should not apply to the federal guidelines because, unlike the Washington state guidelines, they were created not directly by statute but by a commission within the judicial branch.

The commission's work is "the accumulated judicial wisdom about the facts that matter at sentencing," the brief notes.

If the court throws out the guidelines, the issue will return to Congress. Early congressional reactions to Blakely suggest that the ultimate result of scrapping the guidelines would be harsher penalties prescribed by politicians reluctant to be seen as soft on crime.

"[I]t may take only a couple of lenient sentences in high-profile cases to raise enough of a stir to increase mandatory minimum penalties," Sen. Orrin G. Hatch (R-Utah) said at a July 13 hearing of the Senate Judiciary Committee.

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