Change ordered in sentencing system

WASHINGTON - A splintered Supreme Court threw the nation's federal sentencing system into turmoil Wednesday, ruling that the way judges have been sentencing some 60,000 defendants a year is unconstitutional.

In ordering changes, the court found 5-4 that judges have been improperly adding time to some criminals' prison stays.

The high court stopped short of scrapping the nearly two-decade-old guideline system, intended to make sure sentences do not vary widely from courtroom to courtroom.

Instead, the court said in the second half of a two-part ruling that judges should consult the guidelines in determining reasonable sentences - but only on an advisory basis.

How well that will work was immediately questioned.

Justice Antonin Scalia, who voted for the first part of the ruling but against the second, said the change would "wreak havoc on federal district and appellate courts quite needlessly, and for the indefinite future."

"This creates more questions than it answers," said Douglas Berman, an Ohio State University sentencing expert. "There's going to be lots and lots of litigation."

Courts can immediately expect a deluge of cases from inmates who claim they were wrongly sentenced.

Congress may also craft its own solution, and the justices seemed to expect that.

"Ours, of course, is not the last word. The ball now lies in Congress' court," Justice Stephen Breyer wrote in one part of the ruling. "The national legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice."

Senate Judiciary Chairman Arlen Specter, R-Pa., said he would begin working to "establish a sentencing method that will be appropriately tough on career criminals, fair, and consistent with constitutional requirements."

Justice Department officials said they were disappointed in the ruling, crediting the guidelines with producing tough, uniform sentences that have helped drive crime rates to 30-year lows. They said federal prosecutors will continue to urge judges to adhere closely to the guidelines even though they will be merely advisory.

Christopher Wray, assistant attorney general for the department's criminal division, said the guidelines have ensured that "similar defendants who commit similar crimes receive similar sentences. Because the guidelines are now advisory, the risk increases that sentences across the country will become wildly inconsistent."

Under the challenged federal court system, juries consider guilt or innocence but judges make factual decisions that affect prison time, such as the amount of drugs involved in a crime, the number of victims in a fraud or whether a defendant committed perjury during trial.

A coalition of liberal and conservative justices said the practice of judges' acting alone to decide factors that add prison time violates a defendant's Sixth Amendment right to a jury trial.

That same right-left combination of justices held sway in June in a state sentencing case that led to the much-anticipated ruling on federal sentences: Scalia and Justices Clarence Thomas, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

Ginsburg switched sides in the accompanying vote to salvage the guidelines by making them non-mandatory, joining fellow Clinton appointee Breyer along with Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Anthony Kennedy.

Breyer had a special interest in the case. He worked on the sentencing law as a Senate Judiciary Committee staff lawyer and served on the Sentencing Commission, which sets guidelines for judges.

"History does not support a 'right to jury trial' in respect to sentencing facts," he wrote in a dissent to the main holding in Wednesday's ruling.

Stevens wrote for the 5-4 majority that elements of a crime "must be admitted by the defendant or proved to a jury beyond a reasonable doubt."

The ruling, in a pair of drug cases, took longer than expected and topped 100 pages. Justices had put the subject on a fast track, scheduling special arguments on the first day of their nine-month term in October. Most court watchers expected a ruling before the holidays.

The court did not make its decision retroactive, so it will most likely affect only people whose cases are pending, or defendants whose first appeals are not yet completed, like homemaking expert Martha Stewart. Still, that's thousands of cases.

"We're going to have a lot of resentencings," said Nancy King, a law professor specializing in sentencing at Vanderbilt University.

King said it's impossible to know if the change will prompt judges to impose longer or shorter prison sentences. Judges will have more freedom to decide for themselves what a fair sentence is, without making factual findings that the high court objected to.

"It will be interesting to see whether Congress allows this new system a trial run or whether it will step in to impose limits on the judges' discretion," King said.

The cases are United States v. Booker, 04-104, and United States v. Fanfan, 04-105.

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On the Net:

The opinion in United States v. Booker is available at:

http://wid.ap.org/documents/scotus/050112booker.pdf