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Jewish World Review August 11, 2004 / 24 Menachem-Av, 5764

Debra J. Saunders

Debra J. Saunders
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An end to the federal criminal-sentencing system? | The left may have little use for these two, but Supreme Court Justices Antonin Scalia and Clarence Thomas deserve kudos from the civil liberties corner for joining with Justices Ruth Bader Ginsburg, David Souter and John Paul Stevens to issue a radical ruling that may spell an end to the federal criminal-sentencing system.

America will find out if the justices are ready to go the distance later this year.

On June 24, the Big Bench released a 5-4 decision that overturned an enhanced sentence for a Washington state man who had pleaded guilty to kidnapping his estranged wife. Ralph Howard Blakely had arranged for a plea that would limit his sentence within a range of 49 to 53 months, but the Washington judge who heard the case was so appalled at Blakely's "deliberate cruelty" that he increased the sentence to 90 months in prison.

Blakely appealed. As Scalia wrote, Blakely successfully argued that "this sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence."

On the one hand, the Blakely decision was a great gift to those of us who have been pushing for big changes in federal mandatory-minimum sentencing for drug offenders. My complaint: The system has been too harsh on first-time non-violent drug offenders, without being harsh enough on repeat dealers and kingpins who reduce their sentences by turning on their underlings.

Others have complained bitterly that the system robs federal judges of discretion and forces them to issue prison terms that outrage their sense of justice.

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So it is more than ironic that Blakely presents the toughest challenge to federal sentencing guidelines by chastising a judge for ruling on matters better addressed by a jury.

At a time when the Big Bench has been flirting with a more European-style law, which tends to be reverential to ward judges and short on faith in the wisdom of citizen juries, the Blakely decision is an homage to the role of citizen jurors. "Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary," Scalia wrote.

It should be noted: Scalia also wrote, "The federal guidelines are not before us, and we express no opinion on them."

Yet, while all bow to the Big Bench, prosecutors, defense attorneys and courts across America have been acting as if Scalia's disclaimer is bogus. They've filed papers and changed their procedures. At the behest of a harried U.S. Department of Justice, the solicitor general petitioned the Supreme Court for a quick ruling on two cases that stem from the Blakely decision.

"In the 27 days since Blakely was decided, the federal sentencing system has fallen into a state of deep uncertainty and disarray about the constitutional validity of the federal Sentencing Guidelines system and what sentencing procedures should govern if Blakely invalidates that system in whole or in part," the solicitor general wrote. The Supremes agreed to hear arguments on the court's first day back in session in October.

What happens next? When Justice Sandra Day O'Connor dissented, she wrote that she believed "the practical consequences" of Blakely could be disastrous, as "an untold number of criminal judgments" might be newly open to appeal.

"The number of cases potentially affected is staggering," wrote the solicitor general, noting that 64,000 federal defendants are sentenced each year. But attorneys opposed to mandatory minimums believe that only felons with pending appeals could use Blakely to try to reduce their sentences.

As for state guidelines, which were the subject of Blakely, Washington prosecutor Norm Maleng told the Seattle Post-Intelligencer that changing state law to conform with Blakely would require "a relatively easy legislative fix."

It's the draconian federal system that most likely would be overhauled.

"Nobody will shed a tear if these (sentencing) guidelines are found unconstitutional," noted Ronald Weich, who is on the advisory committee of the group Families Against Mandatory Minimums, which wants to change federal guidelines.

Yet Weich would like to see some guidelines — guidelines that don't put first-time non-violent drug offenders behind bars for a decade or more.

It would be nice to see guidelines that don't charge small fish for the amount of drugs their kingpin bosses dealt — while the kingpins negotiate a reduced sentence.

"In the best of all possible worlds, we would go back and reform the federal criminal code," noted Margaret Love, who is on the American Bar Association committee drafting recommendations for saner federal sentences.

Good, but in that best of all worlds, America cannot forget how it got where it is. First, too many judges were too easy on criminals. Then, members of Congress were too harsh in their sentencing laws. Maybe that's why Scalia and company have looked to the people for relief.

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© 2003, Creators Syndicate