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Top court will tackle sentencing guidelines

WASHINGTON — A possible revolution in the federal criminal justice system will be on the agenda when the Supreme Court opens its new term Monday.

In a rare two-hour afternoon oral argument session, the justices will consider whether the federal sentencing guidelines — a 400-plus page manual meant to ensure that federal courts give defendants across the country roughly equal punishments for similar crimes — can be reconciled with the Constitution.

The court is hearing the case on an expedited schedule in response to the uproar and confusion created by a 5-4 ruling it issued just before leaving for summer recess last July.

In that case, Blakely vs. Washington, the court struck down Washington state's sentencing guidelines, which, like the federal guidelines, permit judges to boost sentences based on their own post-conviction fact-finding, rather than relying only on facts admitted by the defendant or found by a jury.

That, the court ruled, violates the right to a jury trial guaranteed by the Sixth Amendment.

Though the court said in Blakely that it did not address the federal guidelines, the similarities between Washington's system and the federal system were such that defense lawyers across the country immediately began bombarding courts with Blakely challenges to their clients' sentences.

Lower courts have issued differing rulings in response, and some federal prosecutors have felt obliged to redraft indictments to make sure they conform to Blakely.

"It looks like a Number 10 earthquake to me," Justice Sandra Day O'Connor, who dissented in Blakely, told a conference of federal judges in July.

While determining the precise magnitude of the Blakely aftershocks is the court's first major item of business, it is by no means the only case of potential national significance on the court's docket.

On Oct. 13, the court will hear arguments in Roper vs. Simmons, a challenge to the constitutionality of the death penalty for those who commit crimes while under the age of 18.

The court has barred capital punishment for those under 16, but it ruled in 1989 that capital punishment for 16- and 17-year old defendants does not constitute "cruel and unusual punishment."

However, the court may decide that a "national consensus" has now formed against imposing the ultimate penalty against offenders who are not yet fully grown — just as it did in 2002 with respect to the death penalty for moderately mentally retarded offenders.

It is nearly certain that the court's two swing voters, Justices O'Connor and Anthony Kennedy, will determine the outcome. Four members of the court — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — have already declared in a published opinion that they believe the death penalty for juveniles should be abolished.

Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas opposed the 2002 mental retardation ruling, which opponents of capital punishment for juveniles are relying on to make their case.

The case to be argued Monday has its roots in a sentencing reform movement that emerged after a 1972 report by federal Judge Marvin Frankel decried the "almost wholly unchecked and sweeping" power of judges to set sentences.

In 1984, Congress established the United States Sentencing Commission as an independent agency within the judicial branch. The commission's first set of guidelines took effect in 1987 and survived a Supreme Court test unrelated to the Sixth Amendment in 1989. The judges and other experts who make up the seven-member panel amend the guidelines each year, after Congress has had 180 days to veto any proposed changes.

Under the guidelines, judges are given a variety of factors to consider in deciding how harshly to punish within the range of penalties established by law.

Though judges increasingly complain that the guidelines limit their ability to tailor justice to individual cases, they have largely cured the inequities that Frankel identified.

But in 2000, the Supreme Court decided Apprendi vs. New Jersey, in which the court struck down a 12-year state sentence for a gun crime because it had been increased from 10 years based only on a judge's finding that the crime had been motivated by racial bias.

Other than the fact of a prior conviction, a five-member majority of the court announced in an opinion by Stevens, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

At the time, Breyer, who played a role in developing the guidelines as a Senate aide and federal appeals judge, predicted that Apprendi would destroy them. And with the liberal-conservative alliance on the court that voted for Apprendi — Stevens, Scalia, Souter, Thomas and Ginsburg — sticking together in Blakely, that prediction came true.

While Breyer, O'Connor and others protest that Blakely's benefit to defendants is far outweighed by the cost in legal disruption, opponents of the guidelines insist that whatever equity in sentencing they achieved was at the expense of defendants' right to face a jury of their peers.

Judges must only conclude that so-called sentencing "factors" have been proven by a preponderance of the evidence, rather than the jury's tougher "beyond a reasonable doubt" standard.

This unduly increases the leverage of prosecutors, defense attorneys argue, giving them the upper hand in plea negotiations, through which roughly 97 percent of the 65,000 federal convictions in fiscal 2002 were achieved. In their view, the ultimate impact of Blakely will simply be a shift in favor of defendants during plea bargaining.

"Given past experience, there is no reason to believe that Blakely-specific indictments will cause an increase — much less a catastrophic increase — in trials," the National Association of Federal Defenders told the court in a friend-of-the-court brief. "Rather, the more specific allegations give the parties specific details with which to reach successful compromise and negotiations."

But, in its brief defending the guidelines, the Bush administration argues that Blakely should not apply to the federal guidelines because, unlike the Washington state guidelines, they were created not directly by statute, but by a commission within the judicial branch.

The commission's work is simply "the accumulated judicial wisdom about the facts that matter at sentencing," the brief notes.

If the court throws out the guidelines, the issue will return to Congress. Early congressional reactions to Blakely suggest that the ultimate result of scrapping the guidelines would be harsher penalties prescribed by politicians reluctant to be seen as soft on crime.

"(I)t may take only a couple of lenient sentences in high-profile cases to raise enough of a stir to increase mandatory minimum penalties," Sen. Orrin Hatch, R-Utah, said at a July 13 hearing of the Senate Judiciary Committee.