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Sentencing Rules Get Hearing

Justices Question Constitutionality of Federal Guidelines

By Charles Lane
Washington Post Staff Writer
Tuesday, October 5, 2004; Page A03

The Supreme Court gave a cool reception to the Bush administration's plea to save the rules that federal judges use in sentencing offenders yesterday, with a slim but firm majority of the court casting doubt on the guidelines' constitutionality during a special two-hour oral argument.

At issue were the more than 400 pages of federal sentencing guidelines, created and annually revised by the seven-member U.S. Sentencing Commission to ensure uniform punishment across the country.

In June, the court voted 5 to 4 to strike down a similar set of sentencing guidelines used by Washington state because they permitted judges to increase a defendant's sentence based on facts that had not been proven to a jury or admitted in plea bargaining. That violated the Sixth Amendment right to a jury trial, the court ruled.

Acting U.S. Solicitor General Paul D. Clement seemed unable to convince any member of the five-justice majority from that case, Blakely v. Washington, that the federal guidelines should survive because they are created by a commission within the judiciary, rather than enacted legislatively, as the Washington rules had been.

"What is the difference in effect?" asked Justice David H. Souter. "That's where I am having trouble, and I guess some others are having trouble. . . . Whether it's a guideline or a statute, what difference does it make from the Sixth Amendment perspective?"

And, because the commission was established under a sentencing reform law passed by Congress in 1984, Justice Ruth Bader Ginsburg added, didn't that mean that "the critical finding has to be made by a jury?"

Except Justice Clarence Thomas, who maintained his customary silence, the other members of the Blakely majority, Justices John Paul Stevens and Antonin Scalia, also made comments or asked questions that strongly implied they were inclined to apply the logic of Blakely to the federal guidelines.

Yesterday's argument was set up on an expedited basis in response to a post-Blakely clamor from lower courts and federal prosecutors for a definitive Supreme Court ruling on the constitutionality of the 17-year-old guidelines.

After Blakely, federal criminal trials and plea negotiations across the country were cast into confusion. In one widely reported case, the North Carolina farmer known as "Tractor Man" was released because more than four years of his sentence for tying up downtown Washington while pretending to be armed were based on facts found by a judge, not a jury.

Yet, perhaps reflecting the fact that there was so little apparent flexibility on the basic issue before the court, the justices wrapped up the argument 12 minutes early after running out of questions for two lawyers representing the federal defendants who are challenging the guidelines.

The justices instead spent much of their time discussing what system, if any, they could devise in place of the guidelines -- with inconclusive results.

Some of the justices were skeptical of the government's suggestions that overturning the guidelines would cause near-chaos in the federal criminal justice system. Ninety-seven percent of federal cases are resolved through plea bargains, not jury trials, Justice John Paul Stevens noted, adding that, of the 3 percent of cases that do go to trial, few end with sentences that would, in practice, violate defendants' rights.

Ginsburg noted she had been advised that, since Blakely, federal prosecutors were simply writing longer indictments, with more facts specifically alleged.

"Is that so intractably difficult?" she asked Clement.

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