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Court gives judges more say over jail time

Federal judges will have significantly more discretion in sentencing criminal defendants, under a much-anticipated Supreme Court ruling released Wednesday.

In a two-part ruling, a divided court decided that the federal sentencing guidelines forced federal judges to improperly increase some defendants' sentences.

The remedy: Make the guidelines advisory, not mandatory, the court ruled.

The decision affects federal defendants charged after Wednesday's ruling and could influence thousands of pending criminal cases across the country.

Courts are bracing for a flood of appeals, and Congress also is expected to weigh in.

"For practical purposes, the ruling guts the guidelines," said Tampa lawyer Bill Jung, a former federal prosecutor. "It puts the power back with the judges. Not everyone is going to like that idea."

The ruling also leaves prosecutors, defense attorneys and defendants in unfamiliar territory, especially those who were not around before the mid 1980s, when federal sentencing guidelines were put into place.

Attorneys could have difficulty estimating the sentences defendants face, at least until they become familiar with each judge's individual sentencing philosophy.

"This is a very big deal," said lawyer Jeffrey Brown, past president of the Tampa Bay Federal Bar Association. "We will be operating in the dark for some time."

The ruling, which topped 100 pages, arose from a pair of drug cases.

First, the court confirmed in a 5-4 vote its previous rulings that said juries, not judges, should decide any fact that would increase a sentence beyond the prescribed guidelines.

Under the old system, for example, judges often determined the number of victims in a fraud case, or a defendant's level of participation in a crime. Both factors could increase a sentence beyond the guidelines.

The court then debated what to do with the federal sentencing guidelines in light of that first ruling. It ruled to make the guidelines advisory in nature.

Justice Antonin Scalia voted with the majority in the first ruling, but voted against the second one.

Making the guidelines advisory will "wreak havoc on federal district and appellate courts quite needlessly, and for the indefinite future," Scalia wrote.

Justice Stephen Breyer, who wrote the majority opinion in the second case, pointed out that Congress has the ability to devise another sentencing system if it wishes, as long as it is compatible with the Constitution.

"Ours, of course, is not the last word: The ball now lies in Congress' court," he wrote.

Senate Judiciary Chairman Arlen Specter, R-Pa., said he would begin working to "establish a sentencing method that will be appropriately tough on career criminals, fair, and consistent with constitutional requirements."

The guidelines sprang from the Sentencing Reform Act of 1984. Congress, reacting to criticism that courts were too lenient and inconsistent, wanted more uniformity in sentences for similar crimes with similar circumstances.

Some federal judges grumbled that the guidelines tied their hands too much. They argued that each case has its own set of circumstances and should not be constrained by rigid guidelines.

The ruling will allow federal judges to sentence defendants up to the statutory maximum. A defendant convicted in a wire fraud case, for instance, could face anywhere from probation to 20 years in prison, the statutory maximum. Under the former guidelines, the same defendant would have faced a much more narrow sentencing range, based upon the specific circumstances of the crime.

Mandatory minimum sentences still apply.

Jung thought Wednesday's ruling was partly a reaction to accusations that Congress meddled too much with the judiciary. The guidelines, especially some stringent drug laws, have rubbed some federal judges the wrong way, he said.

The guidelines, though, also provided cover for the judges. The new ruling gives the judges more responsibility, which can mean more heat when they make a controversial decision.

"They won't be able to hide behind the guidelines anymore," Jung said. "They won't be able to say, "I had to make that decision. The guidelines forced me to."

The ruling disappointed officials with the Justice Department. They credited the guidelines with producing tough, uniform sentences that have helped drive crime rates to 30-year lows.

The guidelines have ensured that "similar defendants who commit similar crimes receive similar sentences," said Christopher Wray, assistant attorney general for the department's criminal division. "Because the guidelines are now advisory, the risk increases that sentences across the country will become wildly inconsistent."

Tim Lynch, director of the Cato Institute's Project on Criminal Justice, countered that prosecutors had too much power under the old system. When sentencing guidelines were mandatory, prosecutors could, in large part, determine the level of someone's sentence by the charge they brought against them. Now, judges will have the latitude to ignore the guidelines and be more merciful, or strict.

"We are more likely to get prudent and sound decisions from impartial judges than we are from partial prosecutors," Lynch said.

Local attorneys said it's tough to tell if federal judges will use the ruling to impose longer or shorter sentences. Each judge has his or her own pet peeves and crimes that particularly set them off. Some do not tolerate gun crimes. Others come down hard on defendants who pull off financial crimes.

The ruling could also complicate negotiating plea deals, they said.

Under the old guidelines, the prosecutor and the defense knew, within a few years, what kind of prison time defendants faced if they pleaded guilty. Judges rarely departed from the guideline range.

Now, if the judge doesn't agree with the sentence recommendation agreed to by the prosecutor and the defendant, the sentence could vary wildly.

"In some cases, you might have to tell a client who wants to plead, "It's possible you could get probation, and it's possible you could get life,' " said Tampa attorney James Felman. "That would be a rare case, but it doesn't make pleading guilty sound so good."

Information from the Associated Press was used in this report. Graham Brink can be reached at (813) 226-3365 or brinksptimes.com.

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