Judges left in confusion on sentencing

High court ruling could mean unfair, inconsistent punishments, critics warn

Courts muddle through change

February 13, 2005|By Gail Gibson | Gail Gibson,SUN NATIONAL STAFF

WASHINGTON - A month after a closely watched Supreme Court decision upended the sentencing system for federal crimes, U.S. judges across the country are struggling to navigate their newfound discretion amid thousands of appeals, widespread confusion and sharp scrutiny from critics who are on guard for soft punishments.

In a complex decision that touched off temporary chaos in the nation's federal courts, the Supreme Court ruled that the guidelines that have shaped criminal sentences for nearly two decades must be considered advisory instead of mandatory. As a result, federal judges have found themselves with greater freedom in sentencing criminals - and a flood of difficult new questions and pressures that could take months or years to resolve.

"Sentencing will be harder now than it was a few months ago," U.S. District Judge Lynn Adelman of Wisconsin said in explaining a one-year sentence he handed down in a bank fraud case two days after the high court's ruling.

Prosecutors wanted the defendant, a former loan officer named Mark Ranum, to face the same time he would have under the mandatory guideline system, roughly three to four years in federal prison.

But Adelman countered in a 14-page opinion that the Supreme Court's decision in United States v. Booker was "not an invitation to do business as usual."

Across the country, few judges would argue that it has been. After its Jan. 12 decision in Booker, the Supreme Court promptly sent some 400 cases back to lower courts for review. Judges in two appeals courts, in San Francisco and New York, asked lawyers to delay filings in hundreds of other pending sentencing reviews as they scrambled to make sense of the new system.

Many trial-level judges are unsure how to proceed, partly because they don't know what the appeals courts will consider a "reasonable" punishment - the new, untested measure for whether a sentence should stand.

As federal judges muddle through the array of new issues, they are under close watch. Although early data from the U.S. Sentencing Commission suggest that most judges still are following the guidelines - a larger percentage have handed down tougher punishments than before the Booker decision - critics warn that the resulting system could become one of unfair and inconsistent sentences.

Watching closely

In Congress and at the Justice Department, officials are watching for overly lenient judges. At a hearing last week, the House judiciary panel began laying the groundwork for possible legislative action to restore a stricter framework for federal sentences.

"Federal sentencing policy is not some abstract matter," said Daniel P. Collins, a former associate deputy attorney general who left the Justice Department in 2003 to work for a Los Angeles law firm. "Common sense suggests that if you lock up criminals for longer periods of time and lock up the very worst for very long periods of time, there will be less crime."

Collins has urged lawmakers to make a quick fix. Others want Congress to allow time for the confusion to resolve itself. Both the American Bar Association and the National Association of Criminal Defense Lawyers have suggested a yearlong waiting period before any legislative changes are considered, saying the time is needed to gather detailed statistics about federal sentences in the aftermath of Booker.

"Basically, the kind of knee-jerk, quick-fix solutions all have problems," said Stephen A. Saltzburg, a George Washington University law professor and member of the bar association committee that proposed the 12-month waiting period. "We were very concerned in the ABA about this rush to judgment - let's fix this, when we don't even know yet if it's broken."

That some change will come seems all but certain. Even as he sketched out a system for using the guidelines on an advisory basis, Supreme Court Justice Stephen G. Breyer acknowledged in one part of the sweeping January ruling: "Ours, of course, is not the last word. The ball now lies in Congress' court."

A jury in Wisconsin found Freddie Booker guilty of possession with intent to distribute at least 50 grams of crack cocaine. The sentencing guidelines in his case required the judge to set a maximum "base" sentence of 21 years and 10 months in prison. But at sentencing, the judge concluded that Booker had possessed an additional 566 grams of crack and was guilty of obstructing justice.

That meant that, because of the guidelines, the judge had to sentence him to at least 30 years in prison.

Congress enacted the mandatory guideline system in 1987, giving judges a range of possible punishment for specific crimes and allowing little leeway for them to stray outside of those limits.

In its splintered January ruling, the Supreme Court found that system to be unconstitutional because it allowed judges to make some findings that could increase prison time - such as the amount of drugs sold by a dealer - in violation of a defendant's Sixth Amendment right to a jury trial.

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