Supreme Court to Fast Track Effort to End Federal Sentencing Chaos 8/6/04

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The US Supreme Court agreed Monday to accept an urgent appeal for a quick hearing on the constitutionality of current federal sentencing guidelines. In a decision in late June in Blakely v. Washington, the court threw out Washington state's guidelines, and while a footnote in that opinion attempted to forestall the storm by declaring that the court was not addressing federal guidelines, the decision has since created absolute chaos in the federal courts as federal judges either declare the guidelines unconstitutional or find them still constitutional, impose much lesser sentences, postpone sentencing, or, in at least one case, sentence defendants twice, once with the guidelines, once without.

In one federal court house in Salt Lake City, four different judges have ruled four different ways on how Blakely applies. In the latest of nearly three dozen Blakely decisions since June, a federal judge in Boston, Nancy Gertner, held that Blakely "has effected nothing less than a sea change" in federal criminal sentencing.

Justice Sandra Day O'Connor, who dissented in the 5-4 Blakely decision, told federal judges last month that the decision "looks like a No. 10 earthquake to me." Now it is up to the Supreme Court to try to damp down the aftershocks once and for all.

In Blakely, the Supreme Court held that any factor that increases a defendant's sentence beyond the statutory maximum sentence must be proven beyond a reasonable doubt by a jury. But in Washington state and the federal system, judges had been entrusted with the power to increase sentences based on findings presented at sentencing and subject to a much lower standard of proof than beyond a reasonable doubt. Of greatest interest to drug reformers, sentences for drug offenses are typically computed according to the weight of the drug involved -- a finding that is made by the judge at sentencing, not by the jury using the higher standard of proof.

The Blakely ruling was grounded in a 2000 Supreme Court decision, Apprendi v. New Jersey, in which the court threw out a sentence enhanced because the trial judge found Apprendi had committed a hate crime. The consequences of the Supreme Court review of its Blakely decision are stupendous: More than 200,000 have been sentenced in the federal courts since Apprendi and many of those sentences could be appealed, legal experts have told DRCNet. (See and for our earlier coverage.)

In recognition of appeals from the Congress and the Justice Department, as well as the sentencing chaos spreading through the federal courts, the Supreme Court took the highly unusual step of announcing it will hear two cases about the sentencing quandary on its first day back at work in October. Although it did not address the urgency of the sentencing issue, the fact that it accepted the cases on an expedited basis speaks for itself.

Federal judges are handing out about 1,200 criminal sentences each week, noted Solicitor General Paul Clement in a filing he made with the court. "The number of federal cases affected by the questions presented in these cases will increase daily until this court resolves those questions," he said in asking the court for a quick review.

In his filing, Clement asked the court to review two issues: First, whether Blakely means the 6th Amendment limits on judges increasing sentences applies to the federal guidelines, and second, if it does, whether the entire federal guideline system is unconstitutional because Congress created the system giving judges unconstitutional powers.

Defense attorneys had urged the court to broaden its review beyond those two issues, but the justices instead bought Clement's argument that examining those two issues would allow for a broad-ranging review of the guideline's constitutionality.

The federal sentencing guidelines system was set up by Congress in 1987 in an effort to ensure more fairness and uniformity in sentencing, and has previously been held constitutional by the Supreme Court. But for reformers, the guidelines have come to be viewed as part and parcel of a federal imprisonment juggernaut where real power is in the hands of prosecutors, not judges.

The cases the justices will hear are those of Freddie Booker and Ducan Fanfan. Booker, 50, of Racine, Wisconsin, was sentenced to 30 years in prison for crack cocaine possession and distribution. The 7th US Circuit Court of Appeals in Chicago overturned that sentence in the wake of Blakely and ordered a new sentencing hearing. Fanfan, 30, of Somerville, Massachusetts, would have been sentenced to 15 to 19 years under the guidelines, but in the wake of Blakely, his judge only gave him six.

Oral hearings are set for October 4. The fates of hundreds of thousands of current and future criminal defendants are at stake. Stay tuned.

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Issue #349, 8/6/04 Medical Marijuana Victory in Detroit | Supreme Court to Fast Track Effort to End Federal Sentencing Chaos | Massachusetts Needle Exchange Activists Hold Day of Protest, Demand Action from Legislature | Newsbrief: Defendant Can Post Pictures of Narcotics Agents in Info Search, Federal Court Says | Newsbrief: Nevada Marijuana Initiative Wins Legal Victory, Still Alive | Newsbrief: Justice Department Backs Off on Plan to Destroy Library Asset Forfeiture Pamphlets | Newsbrief: Israeli Soldiers to Get Cannabis Therapy for Stress? | Newsbrief: Marijuana Charges Down 30% in Canada | Newsbrief: California Narc Indicted in Rudy Cardenas Killing | Newsbrief: Federal Prosecutors in Seattle Use Patriot Act in Marijuana Case | Newsbrief: Bolivian Coca Growers Call for Referendum on Legal Coca | Newsbrief: Highway Travel Advisory -- South Dakota/Sturgis Rally | Press Release: Students for Sensible Drug Policy Activists to Take "Skate for Justice" Through New York State Tomorrow (8/7) | Media Scan: Peter Moskos in the Baltimore Sun | This Week in History | The Reformer's Calendar

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