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Fderal judges started the new year with a gift from the U.S. Supreme Court: more freedom to set sentences than they’ve enjoyed in two decades. Judges lost much of their sentencing discretion when Congress enacted mandatory federal guidelines in 1984. But in January the Supreme Court ruled that in order to be constitutional, the guidelines can only be advisory. As a result, judges are no longer bound by the minimum and maximum sentences once called for under the federal system. The high court’s decision was an attempt to clear up the confusion created by its ruling in Blakely v. Washington last year. In that case, the justices said that Washington State’s sentencing guidelines violated the Sixth Amendment right to trial by jury because they allowed judges to determine sentences instead of juries. The Blakely decision immediately created turmoil in the federal judiciary. District and circuit court judges split on whether Blakely meant that the federal sentencing guidelines, which were almost identical to Washington State’s standards, were also unconstitutional. In an attempt to resolve the federal issue, the Supreme Court heard two cases last fall, United States v. Booker and United States v. Fanfan. But the two-part ruling that the justices delivered on January 12 provided less clarity than courtwatchers wanted. A 5-to-4 majority led by Justice John Paul Stevens faulted the federal guidelines for allowing judges to increase sentences based on facts and factors that they have decided, rather than juries. This violated the Sixth Amendment, the Stevens majority ruled. A different 5-to-4 majority, led by Justice Stephen Breyer, devised the remedy for the guidelines’ unconstitutionality. Requiring juries to handle all sentencing issues would be unworkable, Breyer and his colleagues said. Instead, they decided that sentencing should stay with judges, but that the federal guidelines should be advisory, not mandatory. The ironic result, according to several observers, is that in trying to preserve the right to a jury trial, the Supreme Court has increased the ability of judges to determine sentences. “You can argue that, after [the Booker and Fanfan ruling], judges have the greatest sentencing power they’ve ever had in the history of the republic,” says sentencing expert Frank Bowman III, a professor at Indiana University School of Law. To some, the ruling was welcome news. For years, judges have complained that implementing the complex grids and point systems of the federal sentencing guidelines has turned them into mere technicians. “The [Supreme] Court is saying that federal judges can be judges again,” says Jeffrey Fisher, a criminal defense partner at Davis Wright Tremaine in Seattle. Fisher’s victory in Blakely last June triggered reexamination of the federal sentencing guidelines. He adds, “No more will judges be bound to impose big enhancements on defendants for unproved and speculative conduct.” Tim Lynch of the libertarian Cato Institute is also cheered by the Booker and Fanfan decision. “The federal sentencing guidelines shifted power from the judiciary to prosecutors,” says Lynch. “The [Supreme Court's] ruling will have the effect of shifting power back to the judiciary. The net effect will be an improvement in the administration of justice, because we are more likely to find wisdom and prudence from impartial judges than from partial prosecutors.” Practitioners are divided over the impact of the Booker and Fanfan decision. “In the short and perhaps medium term, chaos will reign in federal courthouses as judges decide how to exercise their newfound discretion in sentencing,” says former federal prosecutor Kirby Behre, now with the D.C. office of Paul, Hastings, Janofsky & Walker. Carmen Hernandez, vice president of the National Association of Criminal Defense Lawyers, is more optimistic. “I don’t think the sky is going to be falling,” she says. According to Hernandez, in states that have advisory guidelines rather than mandatory ones, 85 percent of sentences “end up being the same.” In his opinion, Justice Breyer wrote that the Booker and Fanfan ruling would have to be applied to “all cases on direct review,” and that appeals courts could use “ordinary prudential doctrines” to weed out meritless appeals. But some lawyers and commentators predict waves of court actions involving past and pending cases. “We are likely to have lots and lots of litigation over what this means for ongoing cases,” says Ohio State University law professor Douglas Berman, whose Sentencing Law and Policy blog has tracked post- Blakely developments in detail. “Appellate courts have enormous sentencing powers in the days ahead,” Berman believes. Federal judges — most of whom came to the bench after mandatory guidelines took effect 20 years ago — will likely flex their new muscles modestly. A day after the Supreme Court’s Booker ruling, Utah federal court judge Paul Cassell sentenced a convicted bank robber to the same stretch that would have been required by the formerly mandatory federal guidelines. Cassell, a canny former law clerk to Justices Antonin Scalia and Warren Burger, wrote that Congress will be watching how judges use their “newly granted freedom.” He added, “If that discretion is exercised responsibly, Congress may be inclined to give judges greater flexibility under a new sentencing system.” But Cassell warned that if judges abuse their discretion, “Congress has ample power to respond with mandatory minimum sentences and the like.” As always, with freedom comes responsibility.

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