Justices transform use of sentencing guidelines

WASHINGTON – The Supreme Court abandoned nearly two decades of federal sentencing practice Wednesday, saying judges no longer have to follow the complex system of guidelines that Congress designed in the 1980s to make jail terms tougher and more uniform.

In a 5-4 decision, Justice John Paul Stevens, writing for the majority, found that the federal guidelines ran afoul of the court’s 2004 ruling that said the Sixth Amendment requires juries, not judges, to determine facts that can lengthen sentences.

But rather than eliminate the guidelines or let lower courts work out how to apply the 2004 ruling within the guidelines, the court, in a separate 5-4 decision written by Justice Stephen Breyer, prescribed a sweeping fix of its own.

The guidelines, it said, will be used in an “advisory” manner to help federal judges come up with “reasonable” sentences.

The court said that solves the constitutional problems with the guidelines and preserves Congress’ intent in adopting the rules. But criminal justice experts said Wednesday that the rulings could also bring more confusion to the process.

“The court, by fiat or constitutional interpretation, has now created a system of advisory guidelines, so what we have now is essentially unconstrained judicial sentencing,” said Frank Bowman, an Indiana University law professor and a former federal prosecutor.

Bowman noted that for years, many federal judges have complained that the guidelines left them too little flexibility in determining sentences, and Wednesday’s ruling might seem to be what they wanted.

“But I think they’ll come to regret what has happened here because it’s something that’s far more likely to provoke a response from the Department of Justice and Congress that they’ll find unpleasant.”

It’s unclear, Bowman and others said, whether Wednesday’s rulings offer most of the 170,000 current federal inmates a chance to appeal their sentences. But most agree that nearly all inmates are likely to think they have appeals, inspiring thousands to file.

Assistant Attorney General Christopher Wray, who heads the Justice Department’s Criminal Division, said government officials were encouraged that the court didn’t strike down the guidelines but disappointed that they weren’t sustained as mandatory.

“To the extent that the guidelines are now advisory … the risk increases that sentences across the country will become wildly inconsistent,” Wray said.

The rulings spring from two cases the court heard on the first day of the current term in October. One involves Freddie J. Booker, who was convicted in Wisconsin in 2003 of possessing 50 grams of crack cocaine with intent to sell; another involves Ducan Fanfan, convicted in Maine in 2004 of conspiring to sell more than 500 grams of cocaine.

Both were in possession of far more drugs than they were convicted of having, and under the guidelines, federal judges would have been able to impose longer sentences based on that fact.

The guidelines, the result of the 1984 Sentencing Reform Act, were designed to eliminate wide discrepancies in sentencing and to make sure that judges didn’t go too easy on criminals. They give judges a range of sentences for similar crimes and prescribe longer sentences for criminal activity that judges find to be beyond what a jury weighs, called “relevant conduct.”

But in spring 2004, the Supreme Court ruled, in Blakely v. Washington, that state courts were barred by the Sixth Amendment’s guarantee of a jury trial from allowing judges to make those kinds of determinations. That ruling caused chaos in federal courts, including the ones considering sentences for Booker and Fanfan, where it was unclear whether the ruling applied. Hundreds of sentences were postponed and several were changed to reflect the ruling. The Supreme Court took Booker’s and Fanfan’s cases to provide clarity.

Wednesday’s rulings mean that Booker and Fanfan will be resentenced, but their lawyers expect that the decisions won’t benefit them.

“This ruling was bittersweet for defendants,” said Arizona federal public defender Jon Sands, who chairs a committee of public defenders that focuses on sentencing guidelines.

“The Sixth Amendment was vindicated, but then it was undercut again, all in one day.”

Some defense lawyers also worry that Wednesday’s decision could return the nation to the days when judges in different parts of the country handed out radically different punishments.

The ruling could produce some “law-and-order” circuits where judges throw maximum sentences at any eligible defendant and others where more lenient judges offer parole to hardened criminals.

“My biggest concern is that you’ll have exactly the kind of judge-by-judge, circuit-by-circuit variation that the guidelines were intended to reduce,” said Doug Berman, a law professor at the Moritz College of Law at The Ohio State University.

Breyer’s attempt to save the guidelines by making them advisory and giving judges more discretion drew sharp dissents from Stevens and Justices Antonin Scalia and Clarence Thomas.

Scalia called Breyer’s solution “wonderfully ironic,” in that it “discards the provisions that eliminate discretionary sentencing” in order to rescue “a statutory scheme designed to eliminate discretionary sentencing.”

Stevens said Breyer’s opinion gives no indication as to “how much or to what extent ‘relevant conduct’ should matter.”