Newspaper article The Christian Science Monitor

High-Court Sentencing Showdown ; the Justices Begin Their Term Monday by Reviewing Judges' Role in Federal Sentences

Newspaper article The Christian Science Monitor

High-Court Sentencing Showdown ; the Justices Begin Their Term Monday by Reviewing Judges' Role in Federal Sentences

Article excerpt

Two drug dealers - one from Wisconsin and one from Maine - are at the center of a legal dispute that has brought the federal criminal justice system to a near standstill.

For the past three months, federal prosecutors nationwide have been scrambling to shore up thousands of their most important cases. Defense attorneys are asking for continuances. And many US district judges are slowing down their caseloads.

The moment they have been waiting for arrives Monday in an emergency oral-argument session at the US Supreme Court, where the justices are expected to use the combined cases of convicted drug dealers Freddie Booker and Duncan Fanfan to test the constitutional validity of the federal sentencing guidelines.

It isn't just about drug dealers. Martha Stewart's lawyers raised the same issue. And this decision could potentially affect anyone accused of a federal crime, from terrorism and treason to bank robbery and tax evasion.

The central question is whether the federal sentencing guidelines impermissibly empower judges to perform a function the Constitution reserves for jurors. How the high court answers that question will have implications not only for how federal sentences are meted out, but also for how indictments are written, trials conducted, and plea bargains negotiated.

"This necessarily affects every case that works its way through the criminal justice system in some way," says Douglas Berman, a law professor and sentencing expert at Ohio State's Moritz College of Law.

The fate of the sentencing guidelines first arose three months ago on June 24 when the Supreme Court announced a 5-to-4 decision striking down a portion of Washington State's sentencing guidelines scheme. In that case Ralph Blakely had pleaded guilty to kidnapping his estranged wife. The plea deal called for a 53-month sentence. But at Mr. Blakely's sentencing hearing, the judge rejected the deal after deciding Blakely had acted with "deliberate cruelty."

Under Washington State's guidelines, that extra finding by the judge boosted the overall sentence from 53 to 90 months - adding more than three years to the punishment.

Writing for the majority, Justice Antonin Scalia said the judge had performed a job reserved for a jury. "The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the state should suffer the modest inconvenience of submitting its accusation [to a jury], rather than a lone employee of the state [a judge]," Justice Scalia writes.

The question now is how that same constitutional principle will be applied to the federal sentencing guidelines, which rely on judicial fact-finding even more than Washington State's system does.

Although the high court's focus has been on upholding the power of juries, the Blakely decision has sparked a much broader debate over the proper level of judicial discretion and the power of prosecutors. Some analysts are worried that if the court strikes down all or most of the sentencing guidelines, Congress will respond with a harsher, more inflexible system. Others are hopeful that the current turmoil leads to a system that permits judges more discretion and is oriented more toward rehabilitation than punishment.

But it remains unclear whether the high court is willing to strike down the guidelines. That determination may depend on how a majority of justices view the interplay between the maximum sentences contained in federal criminal statutes and the maximum sentences arising from an application of the guidelines process.

For example, in Mr. Booker's case, he was found guilty by a jury of violating two federal drug-trafficking statutes, carrying a maximum sentence of life in prison. …

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