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
"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
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
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. …