Judges split over sentencing guidelines

July 28, 2004

Shelley Murphy, Boston Globe

A recent US Supreme Court ruling has created confusion about federal sentencing guidelines, with judges throughout the country split on how to mete out punishment to thousands of defendants who have been convicted and are awaiting sentencing.

US District Judge Nancy Gertner on Monday became the third Massachusetts judge to rule that the federal sentencing guidelines are unconstitutional.

Yet, while Gertner and US District Judge Edward F. Harrington say they will no longer follow the guidelines, a third judge, Chief US District Judge William G. Young, said he will continue to follow portions of them.

''There can be no courtwide approach or court rule because no judge is bound to follow it,' Young said. ''We each have to wrestle with the issue individually.'

In a 5-4 decision on June 24, the Supreme Court ruled that the Washington system violated a person's right to a trial by jury because it allowed judges to make findings that were never presented to jurors and increase a defendant's sentence dramatically.

Justice Antonin Scalia, who wrote the majority opinion in Blakely v. Washington, said the court wasn't expressing an opinion on federal sentencing guidelines.

However, dissenting judges noted that the ruling would have a widespread impact on the federal system because it also permits judges to consider relevant conduct and other factors at sentencing, which were never heard by a jury.

In federal court in Boston, and around the country, lawyers have bombarded judges with motions to reconsider old sentences and delay new ones.

Federal prosecutors have filed superseding indictments, adding new factors for juries to consider, instead of leaving them for sentencing.

Last week, the Justice Department urged the Supreme Court , which isn't scheduled to sit until October, to return for an emergency hearing in September to consider two petitions involving federal sentencing guidelines.

In each case, one in Maine and one in Wisconsin, judges refused to use the sentencing guidelines to impose harsher sentences based on facts that weren't considered by a jury.

But, yesterday, defense lawyers urged the court not to rush a ruling, and to wait for additional cases that present more fully developed legal questions.

Last week, a federal judge in Oklahoma said he was in a ''precarious position' trying to figure out what the Supreme Court might do and gave a bank robber three sentences for the same conviction, waiting until later to figure out which will be imposed.

The US Court of Appeals for the First Circuit in Boston is scheduled to hear argument on Monday in a case involving a challenge, based on the Blakely decision.

Boston defense attorney Charles Rankin said, ''I think people are feeling a sense of tremendous hope that the Congress, when it comes time to reform the system, will realize the federal sentencing guidelines are a failed experiment.'

Rankin said he plans to urge the Supreme Court to consider a sentencing that was upheld by the appeals court in June in which a man was convicted of kidnapping, but acquitted of using a gun, then sentenced to an additional nine years by the judge for having the gun.

Because of the way sentencing guidelines work, Rankin said, his client would have actually received a shorter sentence if he had been convicted of having the gun.

Young, who spoke to a group of prosecutors recently about his interpretation of Blakely, said he believes judges may follow the sentencing guidelines, although they can't enhance a defendant's sentence for conduct -- other than a prior conviction -- that hasn't been proven to a jury.

''It squarely placed the jury between the offender and the prison door and in our system of justice it is where the jury should be,' Young said.

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