High-court sentencing showdown

Two drug dealers - one from Wisconsin and one from Maine - are at the center of a legal dispute that has brought the federal criminal justice system to a near standstill.

For the past three months, federal prosecutors nationwide have been scrambling to shore up thousands of their most important cases. Defense attorneys are asking for continuances. And many US district judges are slowing down their caseloads.

The moment they have been waiting for arrives Monday in an emergency oral-argument session at the US Supreme Court, where the justices are expected to use the combined cases of convicted drug dealers Freddie Booker and Duncan Fanfan to test the constitutional validity of the federal sentencing guidelines.

It isn't just about drug dealers. Martha Stewart's lawyers raised the same issue. And this decision could potentially affect anyone accused of a federal crime, from terrorism and treason to bank robbery and tax evasion.

The central question is whether the federal sentencing guidelines impermissibly empower judges to perform a function the Constitution reserves for jurors. How the high court answers that question will have implications not only for how federal sentences are meted out, but also for how indictments are written, trials conducted, and plea bargains negotiated.

"This necessarily affects every case that works its way through the criminal justice system in some way," says Douglas Berman, a law professor and sentencing expert at Ohio State's Moritz College of Law.

The fate of the sentencing guidelines first arose three months ago on June 24 when the Supreme Court announced a 5-to-4 decision striking down a portion of Washington State's sentencing guidelines scheme. In that case Ralph Blakely had pleaded guilty to kidnapping his estranged wife. The plea deal called for a 53-month sentence. But at Mr. Blakely's sentencing hearing, the judge rejected the deal after deciding Blakely had acted with "deliberate cruelty."

Under Washington State's guidelines, that extra finding by the judge boosted the overall sentence from 53 to 90 months - adding more than three years to the punishment.

Writing for the majority, Justice Antonin Scalia said the judge had performed a job reserved for a jury. "The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the state should suffer the modest inconvenience of submitting its accusation [to a jury], rather than a lone employee of the state [a judge]," Justice Scalia writes.

The question now is how that same constitutional principle will be applied to the federal sentencing guidelines, which rely on judicial fact-finding even more than Washington State's system does.

Although the high court's focus has been on upholding the power of juries, the Blakely decision has sparked a much broader debate over the proper level of judicial discretion and the power of prosecutors. Some analysts are worried that if the court strikes down all or most of the sentencing guidelines, Congress will respond with a harsher, more inflexible system. Others are hopeful that the current turmoil leads to a system that permits judges more discretion and is oriented more toward rehabilitation than punishment.

But it remains unclear whether the high court is willing to strike down the guidelines. That determination may depend on how a majority of justices view the interplay between the maximum sentences contained in federal criminal statutes and the maximum sentences arising from an application of the guidelines process.

For example, in Mr. Booker's case, he was found guilty by a jury of violating two federal drug-trafficking statutes, carrying a maximum sentence of life in prison. That means that under the judicial sentencing system that existed before the adoption of sentencing guidelines in 1987, a judge could have legally sentenced Booker to anything up to and including life in prison following a jury's guilty verdict. In addition, the judge had complete discretion to rely on any factor that he or she felt was compelling to reach that result.

In contrast, under the sentencing guidelines, Booker received a 30-year sentence, based on the judge's use of a complex matrix of factors, including Booker's 23 prior convictions, the size of the drug transaction (as calculated by the judge), and the judge's belief that Booker lied when he testified at his trial.

After the Blakely decision last June, Booker's sentence was reduced from 30 years to 22 years, because the appeals court ruled that only those sentencing factors considered directly by the jury could be used to calculate the final sentence. While the sentencing judge could continue to consider Booker's criminal history, the judge could not boost Booker's sentence for alleged perjury and any other similar factors not presented to the jury, the appeals court ruled.

"The sentencing procedure used in this case violated [Booker's] constitutional rights because the judge inflicted punishment that the jury's verdict alone does not allow," says T. Christopher Kelly, a Madison, Wis., lawyer in his brief on behalf of Booker.

Paul Clement, acting solicitor general, says in his brief that a judge's sentencing authority derives from the criminal statutes, not the sentencing guidelines. He says the guidelines are merely a means of "channeling the discretion of sentencing judges to impose a sentence within a legislatively established range."

In Mr. Fanfan's case, he was convicted of attempting to possess and distribute at least 500 grams of cocaine. The federal drug statutes authorize a maximum sentence of 40 years. Under the guidelines, he faced up to 19 years in prison. But if only the factors considered by the jury are plugged into the guidelines calculation, the sentence drops to 6-1/2 years.

"Fanfan's legally authorized sentence would increase by 157 months - more than 13 years - solely on the basis of factual allegations that the prosecution never pled at the outset of the case and never asked the jury to find," writes Rosemary Scapicchio, a Boston lawyer, in her brief on behalf of Fanfan.

The US Supreme Court has been anything but hostile to the federal sentencing guidelines. In a series of decisions since 1989, it has upheld the ability of judges to mete out harsher sentences based on factors never considered by a jury.

The court says judges can increase a sentence if they believe a defendant lied in his trial testimony. Judges can even use criminal conduct acquitted by the jury to boost a defendant's sentence if the judge disagrees with the jury's conclusion.

Professor Berman of Ohio State says the current debate over procedural rights at sentencing stems from a modern transformation of the role of judges in the sentencing process.

Historically, judges were granted wide discretion in the types of information they could use at sentencing to help them determine the best way to rehabilitate a defendant. Judges functioned like physicians, seeking to treat and cure defendants rather than merely punish and incarcerate them. "Nobody talks about having procedural rights with their doctor. You want the doctor to know as much as possible to best cure the aliment," Berman says.

He says in a world where sentencing is about punishing rather than curing, lax sentencing procedures may not be appropriate.