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Sentencing Standards No Longer Mandatory

The likeliest short-term outcome, legal analysts said yesterday, is more litigation, as defendants seek to challenge sentences imposed under the previous system, and as some judges who have criticized the guidelines as too harsh test their new freedom by imposing lesser sentences where they think they are justified.

Critics who regard the sentencing guidelines as too harsh said the court had cheated criminal defendants of an expected victory.


Mary Beth Buchanan, director of the Executive Office for U.S. Attorneys, and Assistant Attorney General Christopher A. Wray discuss the decision. (Lawrence Jackson -- AP)

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Transcript: Dean of the Columbia School of Law at The Catholic University of America is taking your questions on today's Supreme Court rulings about federal sentencing guidelines and changes in illegal immigrant imprisonment.
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United States v. Booker (Federal Sentencing) (Jan. 12, 2005)

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"This is actually a bittersweet day for the criminal defendants. On one hand, the right to a jury trial is vindicated, but on the other hand, in the remedy, it is undercut," said Jon Sands, a federal public defender in Arizona and chairman of the Federal Defender Sentencing Guidelines Committee.

For its part, the Bush administration reacted warily to the court's ruling, with Assistant Attorney General Christopher A. Wray declaring that the Justice Department was "disappointed that the decision made the guidelines advisory in nature," but noting that "federal sentencing guidelines remain a critical part of the process to achieve justice."

The split decision was a surprise ending to a long-running drama within the court that seemed to reach a turning point last June, when the court ruled, 5 to 4, that a state sentencing guideline system that permitted a judge to "enhance" a defendant's sentence based on his own fact-finding violated the constitutional guarantee of a trial by jury. The decision, Blakely v. Washington, was the latest result of the legal revolution set in motion in 2000 by the court's 5 to 4 decision in Apprendi v. New Jersey.

In Apprendi, the court ruled that a judge could not add two years to a 10-year sentence for a weapons crime because he had found that it was motivated by racial bias. A sentence could only be enhanced, the court ruled, based on facts found by a jury beyond a reasonable doubt, lest the Sixth Amendment guarantee of a jury trial be violated.

The logic of Apprendi and Blakely seemed to apply to -- and therefore threaten -- the federal sentencing guidelines, which are written by a commission Congress set up in 1984 to help smooth out what once were huge differences in sentences imposed by judges nationwide for the same criminal conduct.

The guidelines, which took effect in 1987 and are periodically updated, were the fruit of a sentencing-reform movement led by strange political bedfellows. Liberal Democrats who objected to wide inequality in sentencing were joined by conservative Republicans who wanted to force judges to give out stiffer sentences across the board.

As chief counsel to the Senate Judiciary Committee, and later as a federal appeals judge, Breyer played a key role in drafting the sentencing legislation and the guidelines.

Thick as a phone book, the guidelines supply the criteria judges are supposed to follow when they choose to increase a sentence above a certain range or drop it below that.

Freddie Booker's case was a fairly typical one. A jury convicted him of trafficking 92.5 grams of cocaine, a crime punishable by no more than 23 years and 10 months in prison under the guidelines. But at a post-trial sentencing hearing, the judge found that he had probably had 566 grams of cocaine, and had obstructed justice. That bumped Booker's sentence up to 30 years.

As the U.S. prison population has swelled, the guidelines have come under fire from critics who say that they are packing federal penitentiaries with nonviolent drug offenders.

But both Republican and Democratic presidents have credited the guidelines with helping to reduce the nation's violent-crime rate, which hit a 30-year low in 2003, according to the Justice Department.

Breyer himself remains deeply attached to the guidelines and has been fighting to preserve them at the court ever since Apprendi was decided.

His allies in the battle were Rehnquist and O'Connor and Kennedy.

Until yesterday, however, they were consistently outnumbered by a liberal-conservative alliance made up of Stevens, Souter and Ginsburg on the left and Scalia and Thomas on the right.

And during an oral argument on the Booker and Fanfan cases, which the court heard Oct. 4 on an expedited basis because of the uncertainty its Blakely ruling had created in the federal courts, there was no indication of any change in the 5 to 4 lineup that decided Blakely.

But Breyer apparently succeeded in convincing Ginsburg that it was possible to compromise.

"It is a remarkable act of judicial jujitsu that Breyer's managed to pull off," said Frank O. Bowman, a professor of law at Indiana University.


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