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Justices open term with a look at sentencing

WASHINGTON — Federal sentencing guidelines that allow judges to impose harsher penalties on criminals without jury involvement should be upheld as constitutional to avoid mayhem in courthouses nationwide, a government lawyer told the Supreme Court Monday.

"This case concerns the constitutionality of 1,200 criminal sentences that take place in federal court every week," said acting Solicitor General Paul Clement. He argued that criminal defendants' constitutional rights were not breached because judges are constrained by a sentencing range set by Congress.

"There is no Sixth Amendment violation because the effect of judges' findings didn't take the sentencing beyond the statutory maximum," he said.

The Supreme Court was hearing an unusual two-hour argument as to whether judges have too much power under 17-year-old sentencing guidelines that allow judges to boost sentences based on their own fact-finding, not those determined by a jury.

It comes after the high court stunned prosecutors, judges and public defenders by ruling in June that a similar sentencing system in Washington state gave judges too much leeway. That ruling elicited a bitter complaint from Justice Sandra Day O'Connor for its potential to wreak havoc in the courts.

"It looks like a No. 10 earthquake to me," she told a group of judges in a July speech, adding that she was "disgusted in how we dealt with it."

In recognition of the sweeping impact, the court has put the appeals on a fast track, scheduling argument on the first day of their nine-month 2004-05 term.

At stake is a federal system set up by Congress in 1987 to make sentencing more fair. Judges have a range of possible sentences for each crime. They make factual decisions that affect prison time, such as the amount of drugs involved in a crime or the amount of money involved in fraud.

Since June, many judges have delayed sentencings or handed down lighter penalties because of confusion about the future.

More than 200 people are sentenced every day in federal courts. When you add state sentences to that, the number tops 1,000 each day, said Douglas Berman, an Ohio State University law professor.

"The criminal justice system to some extent has ground to a halt," Berman. "This has a ripple effect on how everything else in the criminal justice system operates."

Federal prosecutors have changed the way they indict defendants and handle plea bargains. They've also been asking judges to consider two sentences — one to be used should the sentencing structure be found constitutional, and one if it were overturned.

The constitutional question for the court is whether defendants' Sixth Amendment right to a jury trial is undermined when judges, instead of jurors, make critical decisions that add to sentences.

The appeals involve people sentenced on drug charges in Wisconsin and Maine.

A panel of the 7th U.S. Circuit Court of Appeals in Chicago threw out Freddie Booker's sentence because a Wisconsin federal judge, acting alone, decided how much drugs were involved and that the man had obstructed justice.

The second case involves a Massachusetts man, Ducan Fanfan, who received a lighter prison sentence this summer for a conviction in Maine of conspiracy to distribute cocaine, because of the court's ruling in the Washington state case.

An odd Supreme Court coalition voted to strike down Washington's system, including the court's most liberal members — John Paul Stevens and Ruth Bader Ginsburg — and its two most conservative — Antonin Scalia and Clarence Thomas.

Opposing the decision was Justice Stephen Breyer, who worked on the sentencing law as a Senate Judiciary Committee staff lawyer and served on the Sentencing Commission, which sets guidelines for judges.

Erwin Chemerinsky, a law professor at Duke University, said Breyer is considered one of the parents of the sentencing system and should step aside from hearing the case.

With or without Breyer in the case, the court is expected to be splintered. A ruling is likely before Christmas.

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