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Supreme court gives sentencing power to juries { June 26 2004 }

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Thousands of Cases in Doubt After Decision on Sentencing
Lawyers nationwide are unsure how to proceed now that the Supreme Court has thrown out established punishment guidelines.
By David G. Savage
Times Staff Writer

June 26, 2004

WASHINGTON The Supreme Court has thrown a wrench into the machinery of sentencing criminals nationwide, legal experts said Friday, and it is not clear the machine can be easily or quickly repaired.

Until now, judges usually have decided the proper punishment for a defendant who pleads guilty or is convicted by a jury.

But on Thursday, the Supreme Court ruled that any factor that results in an increased punishment such as carrying a gun or failing to show remorse must be decided by a unanimous jury, not by a single judge.

Suddenly, thousands of pending criminal cases stood in doubt. Must prosecutors change the indictments to include a long list of factors that bear on the crimes? Or must judges hold a separate, post-conviction trial phase for the jury to decide the sentence?

If that does not work, must lawmakers rewrite the laws to set fixed prison terms for certain crimes?

All these questions were being kicked around after Thursday's decision.

"It's going to be interesting to see how all this plays out in the next weeks," said Michael Horowitz of the U.S. Sentencing Commission. He noted that 300 to 400 criminals are sentenced every day in the federal courts alone. Currently, 96% of them plead guilty and waive a jury trial. Now, however, more of them might decide to take their chances before a jury, since it would be difficult for all 12 jurors to reach unanimous agreement on all aspects of the government's description of the crime.

"We might see fewer guilty pleas because of this," Horowitz said.

Many lawyers were quick to say Friday that they do not see an easy solution.

"A lot of people are scratching their heads," said Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento. "The federal sentencing reforms were many years in the making. Now they are in peril."

Prior to the 1980s, two kinds of sentencing systems had been used and discarded at the state and federal levels.

One set fixed sentences by law. A person convicted of robbery would be sentenced to five years in prison, for example, regardless of the circumstances.

"Such a system assures uniformity," Justice Stephen G. Breyer said in dissent Thursday, "but at intolerable costs," since all robbers and robberies are not alike.

The other option, commonly used until the 1970s, set a high maximum in the law often life in prison but in fact a judge or parole board decided how long the defendant would serve. For example, as Justice Antonin Scalia noted, the law might have said burglary could be punished by up to 40 years in prison, even though no one would actually serve that long for that crime alone.

In 1984, Congress passed the Sentencing Reform Act to make criminal punishments more consistent and uniform across the nation. It was the work of a political odd couple: Sens. Edward M. Kennedy, the liberal Democrat from Massachusetts, and Strom Thurmond, the conservative Republican from South Carolina.

Before, Thurmond had complained that too many judges gave light sentences. Kennedy worried that poor and black defendants were too often given unduly harsh sentences. The two agreed on a plan to set more detailed sentencing guidelines so the punishment would fit the crime and not turn on the identity of the judge or the defendant.

The sentencing guidelines, which went into effect in 1987, set dozens of factors that might bear on the punishment in a particular case. For example, in a bank robbery, the judge might add or subtract from the prison term based on the kind of institution that was robbed, the amount that was stolen, whether the money was recovered or repaid, whether a weapon was shown or used, whether the tellers were threatened or hurt, and so on.

However, in Thursday's ruling, the Supreme Court said it is unconstitutional for a judge acting alone to use one of those sentencing factors to add to the punishment.

The U.S. Constitution gives defendants a right to trial by a jury, and "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment," said Scalia in Blakely vs. Washington.

Although the case involved the sentencing guidelines used in the state of Washington, the ruling cast doubt on the similar federal sentencing system.

California does not have similar guidelines, and the state's courts may escape the full effect of Thursday's ruling.

"California has been ahead of the curve" because in some cases, juries already decide on whether to increase the punishment, said Laurie Levenson, a professor at Loyola Law School in Los Angeles. But for some crimes, a state judge can raise a sentence from the middle range to the upper range if he or she finds an "aggravating factor," and those sentences could be attacked, Levenson said.

"I think there will be lots of litigation before this is resolved," she said.

The effect on the federal system seems unquestioned. Justices Sandra Day O'Connor, a former Arizona state legislator, and Breyer, an architect of the federal guidelines, wrote long and passionate dissents predicting the ruling would wreak havoc.

The numbers alone are daunting. In the last four years, 272,191 defendants have been sentenced in the federal courts, O'Connor said. If the U.S. sentencing guidelines are indeed declared unconstitutional, all those defendants could claim their punishments were imposed unconstitutionally, she said.

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