Supreme Court: Sentencing System Wrongly Applied

[RonOnGuitar]

This topic came up a while back (US sentencing guidelines) in another post.

It's good to see that it's faults being looked at. It has got a lot of problems.

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Court: Sentencing System Wrongly Applied



Jan 12, 3:16 PM (ET)



By GINA HOLLAND

(Associated Press)



WASHINGTON (AP) - A splintered Supreme Court threw the nation's federal sentencing system into turmoil Wednesday, ruling that the way judges have been sentencing some 60,000 defendants a year is unconstitutional.



In ordering changes, the court found 5-4 that judges have been improperly adding time to some criminals' prison stays.



The high court stopped short of scrapping the nearly two-decade-old guideline system, intended to make sure sentences do not vary widely from courtroom to courtroom.



Instead, the court said in the second half of a two-part ruling that judges should consult the guidelines in determining reasonable sentences - but only on an advisory basis.



How well that will work was immediately questioned.



Justice Antonin Scalia, who voted for the first part of the ruling but against the second, said the change would "wreak havoc on federal district and appellate courts quite needlessly, and for the indefinite future."



"This creates more questions than it answers," said Douglas Berman, an Ohio State University sentencing expert. "There's going to be lots and lots of litigation."



Courts can immediately expect a deluge of cases from inmates who claim they were wrongly sentenced.



Congress may also craft its own solution, and the justices seemed to expect that.



"Ours, of course, is not the last word. The ball now lies in Congress' court," Justice Stephen Breyer wrote in one part of the ruling. "The national legislature is equipped to devise and install, long-term, the sentencing system, compatible with the Constitution, that Congress judges best for the federal system of justice."



Senate Judiciary Chairman Arlen Specter, R-Pa., said he would begin working to "establish a sentencing method that will be appropriately tough on career criminals, fair, and consistent with constitutional requirements."



A Justice Department spokesman said officials there were disappointed and would be reviewing the decision.



Under the challenged federal court system, juries consider guilt or innocence but judges make factual decisions that affect prison time, such as the amount of drugs involved in a crime, the number of victims in a fraud or whether a defendant committed perjury during trial.



A coalition of liberal and conservative justices said the practice of judges' acting alone to decide factors that add prison time violates a defendant's Sixth Amendment right to a jury trial.



That same right-left combination of justices held sway in June in a state sentencing case that led to the much-anticipated ruling on federal sentences: Scalia and Justices Clarence Thomas, John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.



Ginsburg switched sides in the accompanying vote to salvage the guidelines by making them non-mandatory, joining fellow Clinton appointee Breyer along with Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Anthony Kennedy.



Breyer had a special interest in the case. He worked on the sentencing law as a Senate Judiciary Committee staff lawyer and served on the Sentencing Commission, which sets guidelines for judges.



"History does not support a 'right to jury trial' in respect to sentencing facts," he wrote in a dissent to the main holding in Wednesday's ruling.



Stevens wrote for the 5-4 majority that elements of a crime "must be admitted by the defendant or proved to a jury beyond a reasonable doubt."



The ruling, in a pair of drug cases, took longer than expected and topped 100 pages. Justices had put the subject on a fast track, scheduling special arguments on the first day of their nine-month term in October. Most court watchers expected a ruling before the holidays.



The court did not make its decision retroactive, so it will most likely affect only people whose cases are pending, or defendants whose first appeals are not yet completed, like homemaking expert Martha Stewart. Still, that's thousands of cases.



"We're going to have a lot of resentencings," said Nancy King, a law professor specializing in sentencing at Vanderbilt University.



King said it's impossible to know if the change will prompt judges to impose longer or shorter prison sentences. Judges will have more freedom to decide for themselves what a fair sentence is, without making factual findings that the high court objected to.



"It will be interesting to see whether Congress allows this new system a trial run or whether it will step in to impose limits on the judges' discretion," King said.



The cases are United States v. Booker, 04-104, and United States v. Fanfan, 04-105.

[Rev9Volts]

Mandatory sentencing frustrated





By Bruce Fein





Mandatory sentencing slashes crime. The multiple decisions of the U.S. Supreme Court in United States vs. Booker (Jan. 12, 2005) obtusely upended mandatory Federal Sentencing Guidelines in the name of honoring both the Sixth Amendment right to jury trial and congressional intent in enacting the Sentencing Reform Act of 1984 (SRA).

Congress should race to restore federal mandatory sentences, but with juries finding facts that would determine the severity of punishment.















Career criminals commit the bulk of offenses. Their incarceration forecloses new crimes. Mandatory sentencing also captures noncareer criminals. That misfortune is inescapable because criminology is an infant science. Too little is known of the personalities or circumstances that earmark recidivists to risk mandatory sentencing exceptions. But the overbreadth is worth the price of protecting the innocent.

Since the displacement of Great Society sentencing indulgence with mandatory schemes in the 1980s, the incidence of crime has plunged dramatically. Countless murders have been avoided, endless rapes prevented, innumerable robberies thwarted, and hundreds of thousands of other crimes foiled because of mandatory sentencing.

Congress followed the post-Great Society tide in 1984 with the SRA to stiffen sentences and to make them more uniform. A Federal Sentencing Commission was created to promulgate mandatory Federal Sentencing Guidelines (FSG). They identified characteristics of the offender and the offense found by a jury in the trial phase that translated into a base sentence.

In post-trial proceedings, the presiding judge could depart upward (or downward) by making additional findings that aggravated or mitigated the crime by a preponderance of the evidence. For example, an upward departure would be justified if the judge found the defendant committed perjury in testifying in his own defense.

Detractors of the FSG complained federal judges were handcuffed in making sentences correspond to their morally superior yardsticks for measuring depravity. But members of Congress, echoing public sentiments, adamantly disagreed.

The correlation between mandatory sentences and tumbling crime rates was too pronounced to ignore. Every effort to weaken the FSG or to endow judges with more sentencing options was smartly defeated. The PROTECT Act of 2003 fortified its mandatory features by directing the Sentencing Commission to further confine judicial opportunities for departing from base sentences.

In unmistakable language, Congress lashed at indulgent or starry-eyed judges. The tart remarks of Sen. Orrin Hatch, Utah Republican, were emblematic: "[The Act] says the game is over for judges. You will have some departure guidelines from the Sentencing Commission, but you are not going beyond those, and you are not going to go on doing what is happening in our society today on children's crimes, no matter how softhearted you are. ... We say in this bill: We are sick of this, judges."

The FSG, nevertheless, had vastly magnified the role of the judge at the expense of the jury. After a criminal conviction, judges found facts without the cherished procedural safeguards that protected a defendant from unreliable verdicts, for instance, proof of guilt beyond a reasonable doubt and a right to confront accusers. Under the FSG, the dubious findings of judges substantially hiked sentencing ranges, for example, in Booker, from 262 months to life imprisonment. The Sixth Amendment right to a jury trial withered. Arbitrary or oppressive judges regularly circumvent the jury buffer by finding aggravating facts based on hearsay or whimsy.

Accordingly, a 5-4 majority held the FSG unconstitutional in Booker insofar as judges usurped the traditional jury role in decisively determining the range of permissible punishments. Writing for the Court, Justice John Paul Stevens declared: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximums authorized by the facts established by a guilty plea or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."

The self-evident remedy to cure the constitutional FSG defect consistent with congressional intent was to retain mandatory sentencing, but to require the prosecutor to prove all sentence-enhancing facts during the trial phase. Congress had made the SRA progressively tougher on criminals, and had voiced outrage with "softhearted" judges.

Given a choice between mandatory sentences determined by juries or indeterminate sentences set by judges, Congress would have overwhelming preferred the former. Yet a different 5-4 Supreme Court majority in Booker, speaking through Justice Stephen Breyer, ridiculously insisted on the opposite.

Before his elevation to the Supreme Court, Justice Breyer had fathered the FSG. In his Booker opinion, he doted on his offspring. He presumed the infallibility of federal judges and their unexcelled moral insights about criminals. He contrived a congressional love affair with judicial sentencing discretion.

Accordingly, Justice Breyer rejected mandatory sentences under the FSG with aggravating circumstances found by a jury in favor of a scheme that Congress and the public have unequivocally disparaged as too lenient: namely, indeterminate sentencing by irresolute judges that chronically shortchange crime victims.

The 109th Congress should sprint to override Justice Breyer by reinstating mandatory sentencing consistent with the constitutional right to jury trial. No better crime fighting tool is available.



Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein and Associates and the Lichfield Group.

[RonOnGuitar]

That's all well & good as far as it goes, Rev. But the problem with the sentencing guidelines is that they have achieved exactly the opposite of what they were set up to do: to equalize punishment across the board, regardless of the person's status.



For example, you can have a petty crook commit two minor non-violent crimes and, under the "3 strikes and you're out" sentencing requirement, if s/he steals a slice of pizza worth $ 2-3 be sent to prison for the rest of his/her life. (That actually happened to one guy.)



On the other hand, you have Martha Stewart rob investors in excess of $70,000 and she'll be out in a matter of a few months. I've heard that she's planning some kind of a "reality show" for TV when she's out. (BTW, I don't know why they're called "reality shows", since they have nothing to do with reality, lol.)



Such wide sentencing dispararities are much too common. Judges should be given more room to work with in individual cases so that the punishment actually does fit the crime.



As you know, Rev, the problem that set off the call for sentencing guidelines was (for example) that a "life sentence" had no real meaning. An axe murderer serving a "life sentence" could easily be out in 5 years. If that type of miscarriage of justice were corrected - and it can be - all the guidelines and mandatory sentencing requirements could be tossed in the garbage pile as useless trash.

[Rev9Volts]

You are right. I am not saying we should keep them although I suppose my posting that makes it apear so. I should have added "Here is another opinion". Our system is pretty screwed up either way.