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Federal prosecutors have used the words chaos, turmoil and anarchy to describe the fate of U.S. criminal justice in the wake of the U.S. Supreme Court’s decision in Blakely v. Washington, striking down Washington state’s sentencing guidelines. The court held that imposing a harsher sentence based on facts not found by a jury or admitted by the defendant violates the Sixth Amendment right to a jury trial. As Justice Sandra Day O’Connor suggested in her Blakely dissent, the decision almost certainly invalidates the federal sentencing guidelines. Following the U.S. Department of Justice’s plea to save the guidelines and avert a “crisis” in the federal system, the high court has agreed to hear two appeals on the opening day of the new term in October to determine the legitimacy of the guidelines. However, despite the prosecutorial hysteria, the sky is not falling; alternatives to the guidelines are readily available. Since their enactment 20 years ago, the guidelines have been a disaster. By effectively shifting sentencing power from judges to prosecutors, the guidelines have encouraged prosecutors to systematically violate due process, punish defendants who exercise the right to jury trial, erode the moral force of criminal law, abet racial injustice and relegate federal judges to a supine and subservient role. The guidelines are history. Good riddance. The theory behind the sentencing guidelines was plausible enough: They are designed to restrict the power of judges to impose unwarranted, arbitrary and widely disparate punishment for similar offenses to equally situated offenders. The Federal Sentencing Act of 1984 established fixed sentences for specific charges, abolished parole, created a broad array of aggravating factors that prosecutors could adjust at their discretion and afforded prosecutors virtually exclusive power to grant or deny mercy. Although the guidelines were intended to produce fair, uniform and predictable punishment, it hasn’t worked out that way. Perversely, they have produced far less uniformity, grossly unjust punishments and a massive system of sentence bargaining heavily skewed against the accused. Guidelines bargaining has become the prosecutor’s “lifeblood,” as one judge recently remarked. Faced with draconian maximum sentences, a vast array of potential and overlapping criminal charges that the prosecutor can ratchet up or down at his or her discretion, the ability of prosecutors to manipulate criminal charges to avoid evidentiary and procedural obstacles, and the inability of the judge to moderate prosecutorial excesses, a defendant is compelled-indeed, terrorized-to plea bargain. Jury trial has become a virtual relic. Only three of every 100 defendants request a trial. Defendants are routinely sentenced for crimes for which they have never been charged and the commission of which they deny; the pleas are based on scant and unreliable information that they are unable to challenge. Bad prosecutorial habits Dramatic examples of the prosecutor’s abuse of the guidelines abound. In U.S. v. Kikumura, at the defendant’s sentencing hearing for passport and weapons convictions, which carried a guidelines sentence of 27 to 33 months, the prosecutor argued (outside of the indictment), that the defendant was a member of a violent terrorist organization who had plotted to kill several people. Based on this uncharged, unproved, unreliable and inflammatory allegation, the prosecutor demanded, and the judge acquiesced to, an upward departure under the guidelines to 30 years. Or consider U.S. v. Porter, where the prosecutor blindsided the defendant by seeking an extreme upward departure based on similarly uncharged and unproved conduct regarding possession of crack cocaine. The prosecutor then obtained further enhancements based on six more uncharged and unproved drug sales (46 more months) and sales occurring near a school (tack on 21 months), for a grand total of 137 months, or six times the original sentence for the defendant’s conduct underlying the conviction. Not surprisingly, as these cases show, most judges defer to the prosecutor. On the rare occasions when judges, in the interests of justice and humanity, have reduced an unduly harsh sentence below the guidelines range, the prosecutor has appealed the sentence and usually has prevailed. And now, following intense pressure by Attorney General John Ashcroft accusing federal judges who reduced guidelines sentences of being soft on crime, Congress passed the Feeney amendments to the guidelines, exposing judges who make sentence reductions to public chastisement and, in essence, blacklisting. Since most federal prosecutors have practiced their entire careers under the guidelines, it is understandable that they would feel unsettled without them. But that does not mean that their absence is a catastrophe. We could return to the preguidelines system under which prosecutors bring specific charges, prove them to a jury beyond a reasonable doubt and then seek the authorized sentence for the conviction. Prosecutors also could obtain a defendant’s stipulation to relevant sentencing facts or seek the defendant’s consent to judicial fact-finding. And, as in capital sentencing, prosecutors could opt for sentencing juries to find the additional aggravating facts relevant to enhanced punishment. The current system feeds prosecutors’ addiction to guidelines sentencing and too often violates constitutional safeguards and promotes cynicism and disrespect for law. Blakely has ended a dark chapter in criminal justice. Bennett L. Gershman is a professor at Pace University School of Law. He writes often on prosecutorial misconduct.

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