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Federal sentencing system shattered

U.S. Supreme Court decision reverberates in BR

Author(s): PRNNY BROWN ROBERTS Date: January 13, 2005 Section: News

The prison sentences of a former governor, a Springfield methamphetamine manufacturer and hundreds of other Louisiana federal convicts are up in the air after the U.S. Supreme Court changed the nation's punishment practices.

In a 124-page, two-part opinion issued Wednesday, a 5-4 majority of the high court ruled unconstitutional the method judges use to increase jail time.

But rather than throw out the 20-year-old federal sentencing guidelines -intended to eliminate disparity in punishments - the high court decided they are no longer mandatory, but merely advisory.

The change gives federal judges - many of whom have complained that the sentencing guidelines diminished their role - greater freedom in levying punishment. It also makes sentencing - largely determined for the past two decades by a complicated mathematical formula -much less predictable.

"The first part of the opinion was not unexpected," said Michael Reese Davis, a former Baton Rouge federal prosecutor who is now a defense lawyer. "But the second opinion is extraordinary. By holding that the sentencing guidelines are no longer mandatory, the Supreme Court appears to have turned the federal sentencing system on its head. In many respects, these opinions created more questions than they answer."

Indeed, the decision is expected to bring temporary upheaval to courtrooms in Baton Rouge and other communities nationwide as lawyers test the ruling to determine exactly what it means for those convicted - and in some cases already sentenced.

In question are hundreds of defendants who have challenged the legality of their punishment or who are awaiting sentencing - among them former Gov. Edwin Edwards and admitted methamphetamine manufacturer Dawes Rate 1 if.

U.S. District Judge Frank Polozola upped Edwards' sentence for riverboat casino licensing extortion based on facts not found by a jury.

Ratcliff- the brother of former Livingston Parish President Dewey Ratcliff- is awaiting sentencing after pleading guilty to drug charges.

"A lot of federal sentences in this district are going to have to be reconsidered," Baton Rouge defense lawyer Mark Upton said Wednesday. "I see a huge number of cases coming back for

resentencing, creating a serious logistical problem for the district courts."

U.S. Attorney David Dugas said prosecutors "should have a better sense in the next several days and weeks" how many defendants might have to be sentenced again.

The issue came to the forefront this summer when the Supreme Court ruled in a Washington State case that judges couldn't sentence convicted criminals to more time than called for by law by taking into account aggravating circumstances not proven beyond a reasonable doubt.

In that ease - Blakely v. Washington - a wealthy rancher pleaded guilty to kidnapping his estranged wife and expected a sentence of about four years as set in state guidelines. But the judge added three years to his prison term after deciding Blakely had shown "deliberate cruelty" based on information never considered by a jury.

That decision threw the federal guidelines into turmoil, prompting the Supreme Court on its first day of the current term to hear the two cases that form the basis for its latest ruling.

One involves Freddie J. Booker, who was convicted in Wisconsin in 2003 of possessing 50 grams of crack cocaine with intent to sell. The other case involves Ducan Fan, convicted in Maine in 2004 of conspiring to sell more than 500 grams of cocaine. Judges boosted the men's sentences based on the understanding that they possessed more drugs than they were convicted of having.

Justice John Paul Stevens, writing for the majority, found that federal guidelines violated the court's ruling in Blakely that the Sixth Amendment requires juries - not judges - to determine the facts that can lengthen sentences. Justices Antonin Scalia, David II. Souter, Clarence Thomas and Ruth Bader Ginsburg joined in the opinion; dissenting were Chief Justice William Rehnquist and Justices Sandra Day O'Connor, Anthony Kennedy and Stephen Breyer.

A separate 5-4 decision written by Breyer said the guidelines can be used in an "advisory" manner to help federal judges develop "reasonable" sentences. Joining in that opinion were Rehnquist, O'Connor, Kennedy and Ginsburg; dissenting were Scalia, Souter, Thomas and Stevens.

Justice Department officials said they were disappointed with the ruling, crediting the guidelines with producing tough, uniform sentences that have helped drive crime rates to 30-year lows.

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

On Wednesday morning, Rebecca Hudsmith, federal public defender for Louisiana, was preparing for several upcoming sentencing hearings.

When she heard news of the Supreme Court's ruling, she realized she had to immediately change her way of "lawyering."

"U does give judges who are more inclined to go up more wiggle room and those inclined to go down more wiggle room," she said. "But what it means is that lawyers have a lot more lawyering they can do in presenting an argument on behalf of their client. It really gives back to the judges real discretion in deciding an appropriate sentence."

But Baton Rouge defense lawyer Thomas Damico was worrying that some of his clients might be facing harsher sentences without the guidelines. He said he hopes that provisions for reducing sentences -such as cooperating with federal investigators - will remain in place.

"1 always thought the guidelines were very reasonable overall and saved a lot of people some time," he said. "I've got some clients I'm a little cautious about what's going to happen to them. They may face higher penalties than what the guidelines would show."

The Associated Press and Knight Ridder newspapers contributed to this report.

Copyright 2005 Capital City Press, Baton Rouge, La.

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