Jewish World Review June 29, 2004 / 10 Tamuz 5764

Dan Abrams

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Why it's refreshing to see justices of the U.S. Supreme Court looking beyond the marble halls to the impact of their decisions | Last week, an unusually balanced minority led by Justice O'Connor dissented from an important opinion in large part because "the practical consequences may be disastrous."

They were the four in a 5-4 opinion where the court struck down Washington's state sentencing guidelines. It's pretty clear that this opinion makes the federal sentencing scheme and that of many states unconstitutional null and void and that means most prosecutors in this country are having a lot of questions today about what to do now.

The Supreme Court ruled that a judge should not have the authority to impose a sentence above the ordinary range for a crime. In this case, a man pled guilty to kidnapping his estranged wife.

Generally, the maximum for kidnapping with a weapon was 53 months. Judges were permitted to increase the penalty if there were "substantial and compelling reasons."

This judge here added 37 months to what he called deliberate cruelty by the defendant. The majority of opinion of Justice Antonin Scalia joined by Clarence Thomas and three of the most liberal members of the court, ruled that only under the Sixth Amendment only juries, not judges, should be able to make that sort of finding.

But apart from the constitutional debate, it was nice to see the minority, O'Connor, Breyer, Kennedy and Rehnquist talking about how this ruling "ignores the havoc it's about to wreak on trial courts across the country."

Why? Because "over 20 years of sentencing reform were all but lost and tens of thousands of criminal judgments are in jeopardy." They're right and the court had other opportunities to strike down the guidelines, but refused to do so. That's part of the problem.

The Supreme Court has a tendency to focus as narrowly as possible on issues, so this was sort of a bombshell to prosecutors who now have no guidance about, for example, what a plea deal might really mean in terms of the sentence.

And so I applaud the four justices willing to debate the meaning of the Constitution while refusing to forget what it really means for everyone outside the marble halls.

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JWR contributor Dan Abrams anchors “The Abrams Report,” Monday through Friday from 9-10 p.m. ET on MSNBC TV. He also covers legal stories for “NBC Nightly News with Tom Brokaw,” “Today” and “Dateline NBC.” To visit his website, click here. Comment by clicking here.



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