High-court sentencing showdown

By Warren Richey

WASHINGTON - Two drug dealers - one from Wisconsin and one from Maine - are atthe center of a legal dispute that has brought the federal criminal justicesystem to a near standstill.

For the past three months, federal prosecutors nationwide have beenscrambling to shore up thousands of their most important cases. Defenseattorneys are asking for continuances. And many US district judges areslowing down their caseloads.

The moment they have been waiting for arrives Monday in anemergency oral-argument session at the US Supreme Court, where the justicesare expected to use the combined cases of convicted drug dealers FreddieBooker and Duncan Fanfan to test the constitutional validity of the federalsentencing guidelines.

It isn't just about drug dealers. Martha Stewart's lawyers raisedthe same issue. And this decision could potentially affect anyone accused ofa federal crime, from terrorism and treason to bank robbery and taxevasion.

The central question is whether the federal sentencing guidelinesimpermissibly empower judges to perform a function the Constitution reservesfor jurors. How the high court answers that question will have implicationsnot only for how federal sentences are meted out, but also for howindictments are written, trials conducted, and plea bargainsnegotiated.

"This necessarily affects every case that works its way through thecriminal justice system in some way," says Douglas Berman, a law professorand sentencing expert at Ohio State's Moritz College of Law.

The fate of the sentencing guidelines first arose three months agoon June 24 when the Supreme Court announced a 5-to-4 decision striking downa portion of Washington State's sentencing guidelines scheme. In that caseRalph Blakely had pleaded guilty to kidnapping his estranged wife. The pleadeal called for a 53-month sentence. But at Mr. Blakely's sentencinghearing, the judge rejected the deal after deciding Blakely had acted with"deliberate cruelty."

Under Washington State's guidelines, that extra finding by thejudge boosted the overall sentence from 53 to 90 months - adding more thanthree years to the punishment.

Writing for the majority, Justice Antonin Scalia said the judge hadperformed a job reserved for a jury. "The Framers would not have thought ittoo much to demand that, before depriving a man of three more years of hisliberty, the state should suffer the modest inconvenience of submitting itsaccusation [to a jury], rather than a lone employee of the state [a judge],"Justice Scalia writes.

The question now is how that same constitutional principle will beapplied to the federal sentencing guidelines, which rely on judicialfact-finding even more than Washington State's system does.

Although the high court's focus has been on upholding the power ofjuries, the Blakely decision has sparked a much broader debate over theproper level of judicial discretion and the power of prosecutors. Someanalysts are worried that if the court strikes down all or most of thesentencing guidelines, Congress will respond with a harsher, more inflexiblesystem. Others are hopeful that the current turmoil leads to a system thatpermits judges more discretion and is oriented more toward rehabilitationthan punishment.

But it remains unclear whether the high court is willing to strikedown the guidelines. That determination may depend on how a majority ofjustices view the interplay between the maximum sentences contained infederal criminal statutes and the maximum sentences arising from anapplication of the guidelines process.

For example, in Mr. Booker's case, he was found guilty by a jury ofviolating two federal drug-trafficking statutes, carrying a maximum sentenceof life in prison. That means that under the judicial sentencing system thatexisted before the adoption of sentencing guidelines in 1987, a judge couldhave legally sentenced Booker to anything up to and including life in prisonfollowing a jury's guilty verdict. In addition, the judge had completediscretion to rely on any factor that he or she felt was compelling to reachthat result.

In contrast, under the sentencing guidelines, Booker received a30-year sentence, based on the judge's use of a complex matrix of factors,including Booker's 23 prior convictions, the size of the drug transaction(as calculated by the judge), and the judge's belief that Booker lied whenhe testified at his trial.

After the Blakely decision last June, Booker's sentence was reducedfrom 30 years to 22 years, because the appeals court ruled that only thosesentencing factors considered directly by the jury could be used tocalculate the final sentence. While the sentencing judge could continue toconsider Booker's criminal history, the judge could not boost Booker'ssentence for alleged perjury and any other similar factors not presented tothe jury, the appeals court ruled.

"The sentencing procedure used in this case violated [Booker's]constitutional rights because the judge inflicted punishment that the jury'sverdict alone does not allow," says T. Christopher Kelly, a Madison, Wis.,lawyer in his brief on behalf of Booker.

Paul Clement, acting solicitor general, says in his brief that ajudge's sentencing authority derives from the criminal statutes, not thesentencing guidelines. He says the guidelines are merely a means of"channeling the discretion of sentencing judges to impose a sentence withina legislatively established range."

In Mr. Fanfan's case, he was convicted of attempting to possess anddistribute at least 500 grams of cocaine. The federal drug statutesauthorize a maximum sentence of 40 years. Under the guidelines, he faced upto 19 years in prison. But if only the factors considered by the jury areplugged into the guidelines calculation, the sentence drops to 6-1/2years.

"Fanfan's legally authorized sentence would increase by 157 months- more than 13 years - solely on the basis of factual allegations that theprosecution never pled at the outset of the case and never asked the jury tofind," writes Rosemary Scapicchio, a Boston lawyer, in her brief on behalfof Fanfan.

The US Supreme Court has been anything but hostile to the federalsentencing guidelines. In a series of decisions since 1989, it has upheldthe ability of judges to mete out harsher sentences based on factors neverconsidered by a jury.

The court says judges can increase a sentence if they believe adefendant lied in his trial testimony. Judges can even use criminal conductacquitted by the jury to boost a defendant's sentence if the judge disagreeswith the jury's conclusion.

Professor Berman of Ohio State says the current debate overprocedural rights at sentencing stems from a modern transformation of therole of judges in the sentencing process.

Historically, judges were granted wide discretion in the types ofinformation they could use at sentencing to help them determine the best wayto rehabilitate a defendant. Judges functioned like physicians, seeking totreat and cure defendants rather than merely punish and incarcerate them."Nobody talks about having procedural rights with their doctor. You want thedoctor to know as much as possible to best cure the aliment," Bermansays.

He says in a world where sentencing is about punishing rather thancuring, lax sentencing procedures may not be appropriate.

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