The NewStandard ceased publishing on April 27, 2007.

High Court Hears Arguments Over Sentencing Guidelines

by Brendan Coyne

In two cases expected to profoundly affect the way people convicted of a crimes are sentenced, the US Supreme Court heard arguments in United States v Booker and United States v Fanfan.

Oct. 12, 2004 – The United States Supreme Court heard arguments last week in two cases legal analysts say could profoundly impact the criminal justice system. At issue is the legality of federal sentencing guidelines, which have come under fire for allegedly violating the constitutional right to a jury trial. If overturned, the sentences of thousands of people currently serving time could be called into question.

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During its last session, the Supreme Court voided sentencing guidelines used in Washington State on the grounds that they were unconstitutional. Lawyers successfully argued in Blakely v Washington that during the sentencing phase, allowing judges to consider evidence not introduced during a trial, other than information about prior criminal history, was a constitutional violation. "Every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to punishment," wrote the Court.

That 5-4 ruling created massive confusion nationwide as lawyers have used the Blakely decision to challenge judge-imposed sentences in state and federal courts. The Supreme Court agreed to hear two more cases in an effort to stem the confusion. The arguments in both cases, United States v Booker and United States v Fanfan, were heard in a special afternoon session of the Court’s first day back after recess. A decision is expected within the next couple of months.

"Every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to punishment." US Supreme Court.

Legal analysts say the Court must address two main questions. The first is whether allowing a judge to consider new evidence after a trial as allowed under the current Federal Sentencing Guidelines, violates the 6th Amendment right to a jury trial, and the second is, if so, whether the entire 600 plus pages of federal sentencing guidelines have to be thrown out.

Ohio State University law professor and managing editor of the Federal Sentencing Reporter Douglas Berman said that the Court’s decision on Booker and Fanfan will have a tremendous impact on the criminal justice system not only on current and future cases, but on ones that have already passed through the system as well.

"Courts very much do not want to throw open the prison doors," Berman told The NewStandard. "But, according the federal government’s own estimates, the ruling may affect as many as two-thirds of all cases. That means thousands, if not hundreds of thousands of people currently incarcerated may be eligible for reduced sentences."

It is this issue, says Berman, which make Blakely, Booker and Fanfan so important. He says it may be the biggest sentencing and defendants’ rights case ever to come before the Court.

Last Monday, the federal government defended the current sentencing guidelines, which allow judges, during the sentencing phase, to review evidence not available to the jury during the trial. The government argued the federal system is inherently different from Washington State’s system, which had been struck down during the Blakely ruling.

US Solicitor General Paul D. Clement argued the government’s case that the Federal Sentencing Guidelines are a product of the judicial branch of government. Although established by Congress, they were developed and continuously revised by the United States Sentencing Commission, an agency appointed by the judiciary. In contrast, Washington State’s guidelines were imposed by the state legislature. Therefore, argued Clement, the two systems were different and the Blakely ruling, which applied to Washington State’s guidelines, does not apply to the federal guidelines.

"It’s a nice try because the government has an interest in keeping the guidelines the way they are," said Berman. "The argument’s not a good one. The government is attempting to make this a question over who writes the rules, and I don’t think that is going to work with this Court."

Before the Court, defense attorneys Chris Kelly and Rosemary Scapicchio argued that prosecutors abuse the system by bringing simple, easily provable charges to trial, but then give the judge new evidence during the sentencing process.

Scapicchio also told the Court that the government contradicted its own arguments made during Blakely. In arguing Blakely, the government had asked that Washington’s guidelines be upheld as they were essentially the same as the federal ones now being challenged, according to transcripts available from the Supreme Court website.

The Blakely decision held that a jury must be involved in the fact-finding portion of sentencing because judges were using information not specifically presented at trial. While a jury has to find a person guilty "beyond a reasonable doubt," judges can use a lower "preponderance of the evidence" standard for sentencing.

David Porter of the National Association of Criminal Defense Lawyers said that as a result, the imposed sentence is often many times longer than that which the law called for. Porter’s organization filed a "Friend-of-the-Court" brief in Blakely and advocates jury participation in sentencing convicts.

"The way the Federal Sentencing Guidelines work now is that a person found guilty by a jury is essentially sentenced for separate crimes through a preponderance of evidence," Porter said in an interview with TNS. "This could be police reports, hearsay, pretty much anything. It can expand the sentence tremendously… it’s really become an intolerable, indefensible system."

According to Porter, federal judges often determine sentences using information found at a crime scene but never presented to a jury. In fact, they even sometimes take into account charges of which a jury has specifically acquitted a defendant. Such consideration, Porter says, can lead to sentences "ten, twenty, even thirty-fold what they would be for the initial conviction."

With the arguments finished, both Porter and Berman say the Court will likely make a decision soon, probably before the end of the year and possibly as soon as November. Neither is willing to hazard a guess as to what the justices will ultimately decide on the second question, though they and many other legal analysts and scholars agree that the guidelines as developed by the United States Sentencing Commission are overly-cumbersome and in need of reform.

As University of Iowa College of Law professor Stephanos Bibas wrote in an online debate with Berman, published in Legal Affairs in September: "My fear is that the [United States Sentencing] Commission is still wedded to its old model. Many state sentencing commissions have done a much better job by soliciting and incorporating comments from a wide variety of people, but I don't see how the feds will get there from here."

Bibas, a former Assistant US Attorney from the Southern District of New York, told The NewStandard his main concern is that the Court will apply Blakely to the federal system in a limited form and leave the guidelines largely intact. Such a situation, he says, would create more problems than it solves.

"If they’re going to apply Blakely to the federal system, it would be better to knock it [the Guidelines] all down," he said.

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The NewStandard ceased publishing on April 27, 2007.

Brendan Coyne is a contributing journalist.

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