Supreme Court Wrestles with Sentencing Guidelines
And Comes Up With A Combo

Supreme Court Transforms Use of Sentence Guidelines
By LINDA GREENHOUSE
NY TImes
Published: January 12, 2005

WASHINGTON, Jan. 12 - The Supreme Court on Wednesday transformed federal criminal sentencing by restoring to judges much of the discretion that Congress took away 21 years ago when it put sentencing guidelines in place and told judges to follow them.

The guidelines, intended to make sentences more uniform, should be treated as merely advisory to cure a constitutional deficiency in the system, the court held in an unusual two-part decision produced by two coalitions of justices.

In the first part, five justices declared that the current guidelines system violated defendants' rights to trial by jury by giving judges the power to make factual findings that increased sentences beyond the maximum that the jury's findings alone would support.

That portion of the opinion had been widely anticipated, growing directly out of a similar conclusion the same five justices - John Paul Stevens, Antonin Scalia, David H. Souter, Clarence Thomas and Ruth Bader Ginsburg - reached last June in invalidating the sentencing guidelines system in the state of Washington.

The real question hanging over the case, which the court granted on an expedited basis over the summer and heard in October on the opening day of its new term, was how the justices would solve the problem.

So it was the second part of the decision - the remedy - that was the surprise and that will shape the continuing debate over sentencing policy. With Justice Ginsburg joining the four justices who dissented from the first part - Stephen G. Breyer, Sandra Day O'Connor, Anthony M. Kennedy and Chief Justice William H. Rehnquist - a separate coalition said the problem could be fixed if the guidelines were treated as discretionary rather than mandatory.

From now on, Justice Breyer said, writing for the majority in this portion of the decision, judges "must consult" the guidelines and "take them into account" in imposing sentences. But at the end of the day the guidelines will be advisory only, with sentences to be reviewed on appeal for "reasonableness." Lawmakers and legal experts predicted Wednesday that the court's decision would renew the struggle between Congress and the judiciary for control over sentencing. On Capitol Hill, some members of Congress made it clear that they were bracing for a fight over how much discretion federal judges should have. [Page A27.]

The decision leaves many unanswered questions and much work for the federal courts of appeals. It is in the appeals courts that its real meaning will emerge, as those courts handle sentencing appeals and build a body of law evaluating the "reasonableness" of sentences.

Thousands of federal defendants who have been sentenced since the decision in the Washington State case have effectively been in limbo awaiting clarification of the situation. People whose sentences are still on appeal will be immediately affected by the ruling.

The guidelines provide judges with a grid with the offense for which the defendant has been convicted on one axis and the offender's history and other details on another. The grid gives the judges a range of possible sentences and the system instructs them to go above that range if they make certain factual findings. It was this mandatory aspect of the sytem that was at issue in the case.

The remedy devised by Justice Breyer's five-member majority had not been proposed by any party, although the Justice Department suggested a form of advisory guidelines as a fallback position to its defense of the system's constitutionality. Christopher A. Wray, an assistant attorney general, said Wednesday that the department was relieved to see the guidelines remain in place but concerned that sentencing disparities might increase now that they are no longer mandatory.

The decision, United States v. Booker, No. 04-104, had its roots in a series of intensely disputed sentencing rulings that began with Apprendi v. New Jersey in 2000. In a series of cases, the court has held that given the Sixth Amendment right to trial by jury, judges cannot impose sentences beyond the "prescribed statutory maximum" unless the facts supporting such an increase are found by a jury beyond a reasonable doubt.