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Old 07-20-2004, 10:07 AM
HanginOn HanginOn is offline
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Default Justice Dept Pushes Supreme Court

July 20, 2004
Justice Dept. Seeks Decision on Sentencing

ASHINGTON, July 19 - The Justice Department is planning to rush to the Supreme Court in a matter of days to try to salvage the guidelines that control federal criminal sentences, now under siege in many courts.

Under the plan under discussion among lawyers and the court, the court could hear the dispute early in its new term, which starts Oct. 4. At the core of the matter is the rapid demise of the federal sentencing rules - a direct result of its own 5-to-4 ruling less than four weeks ago.

Paul D. Clement, the acting United States solicitor general, has approved taking two cases swiftly to the Supreme Court, according to a Justice Department official who spoke on the condition of anonymity. One would be a direct appeal from a ruling by a federal trial judge in Portland, Me., bypassing the federal appeals court in Boston. The other would be a regular appeal from a decision by a federal appeals court in Chicago.

The appeals will be filed soon, the official said, and the court will be asked to approve review on an expedited schedule. The court will decide whether to hear one or both of the cases, and whether to hear them separately or together. Both cases will focus on a critical issue now occupying federal courts: the constitutionality of the federal sentencing guidelines.

The justices are in recess until mid-September, but they are expected to act on the appeals through a telephone conference call.

"The government is looking for cases that present the best scenario" for testing the guidelines' validity, said Rosemary Curran Scapicchio, a Boston lawyer who represents a man in one of the cases that the Justice Department will be appealing. The man, Ducan Fanfan, 30, of Somerville, Mass., was convicted of cocaine trafficking. The government has appealed that case to the United States Court of Appeals for the First Circuit, in Boston, but will ask the Supreme Court to rule in advance of any decision by that lower court.

The concept behind federal and state sentencing guidelines is to standardize the process by which judges mete out punishment. Guidelines tell judges which factors can lead to a lighter sentence, like service to the community or cooperation with investigators, and which factors can lead to a more severe penalty, like the use of a gun during the crime or a lack of remorse.

The new constitutional challenges to the current federal guidelines arise out of the justices' ruling in the closing days of the last term, in the case of Blakely v. Washington. That decision struck down key parts of a state sentencing guidelines system, finding that it gave the judge discretion to increase a sentence based on facts that had not been established by a jury in a guilty verdict or by a guilty plea. The right to a jury trial, the majority said, does not allow a judge to increase a sentence based on factual findings made only by the judge.

Although the court majority insisted it was not ruling on the validity of the federal guidelines, since the case involved only a state law, the dissenters predicted that the federal system would fall next. In a dissenting opinion, Justice Sandra Day O'Connor said the decision "threatens an untold number of criminal judgments," perhaps undoing all criminal sentences imposed under federal or state guideline systems for at least the last four years.

In fact, the June 24 ruling cast into constitutional doubt the entire federal sentencing regimen that Congress mandated in 1984. Sentences are now generally lighter than they would have been under the federal guidelines, on the premise that the guidelines have been undercut by the court's decision last month.

Because of the Supreme Court's decision, federal appellate and trial judges, as well as prosecutors and defense lawyers, have complained that the federal system is now in turmoil, and many have argued that the Supreme Court must act swiftly to straighten it out. Several times each week, another federal court, on its own or at the urging of defense lawyers, has joined the fray. The results have been somewhat mixed, but the dominant trend has been to scuttle the guidelines, in whole or in part.

If the current guidelines had been used in Mr. Fanfan's case, he would have been sent to prison for at least 15 years and 8 months. But Judge D. Brock Hornby of United States District Court in Portland ruled that it would be unconstitutional to use the guidelines range against Mr. Fanfan, so he sentenced him to 6½ years.

The other case that Justice Department officials have chosen for an early appeal involves Freddie J. Booker, a Wisconsin man convicted of distribution of cocaine "base." Mr. Booker was sentenced before the Supreme Court's decision.

But the United States Court of Appeals for the Seventh Circuit, in Chicago, struck down Mr. Booker's sentence of 30 years to life, finding that the trial judge had acted unconstitutionally by relying on the guidelines. The judge had added time to the sentence after concluding that Mr. Booker had dealt more cocaine than the jury had convicted him of.

By taking the two cases to the Supreme Court, the department will be seeking to cover the two levels of lower court responses to the June ruling: imposing a lower sentence after abandoning the guidelines, and undoing a sentence based on the guidelines as they existed before the June ruling.

Ms. Scapicchio, Mr. Fanfan's lawyer, said one schedule proposed to her by Justice Department lawyers was to get a case to the Supreme Court for a hearing in September, even before the new court term formally opens. The court seldom holds hearings in September, but it did so last year in a major campaign finance case.

Ms. Scapicchio said she had replied that she preferred a second proposed schedule, with the case to be heard by the justices in the first week of the new term. She said she had been told by Justice Department officials that a rapid schedule had been cleared with the court.
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Old 07-29-2005, 07:58 PM
scarednconfused scarednconfused is offline

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So explain to me what this actually means if it passes. I don't mean to act dense, it just reads a little thick to me.
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Old 07-29-2005, 09:47 PM
bellisq bellisq is offline
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Understanding that article is kinda like trying to listen underwater. I'll take a stab at this, first, Lyle Denniston, is the Boston Globe's Supreme Court reporter for 46 years. He's talking about the way the Republican party/conservatives lawyers are going to try to make the Supreme Court reverse itself, because they don't like the guidelines being made advisory. The Supremes really took their time and did what no one predicted and they weren't just playing around. It won't change back to the old system.

About passing - that would be the legislative branch, congressmen and senators. Doesn't look to me like it is going to be touched this year but maybe next year. If they passed a bill to reinstate the Guidelines, defense lawyers would try lots of maneuvers to stop it and eventually sue and the suit would work it's way to the Supremes and I think the defense would probably win, but if the government won the case, and anything did change in a big way, it wouldn't be until 2008 - 2009, is my best guess.

Are you or your loved one in a pre-sentencing situation? If so, you are safe, at least from the issues brought up in this article. I read lots of legal blogs and this is the first I have heard of this expedited stuff. DC is focused on the Roberts hearings and the Valerie Plame scandal, plus it is summer, so everbody goes to their home state...

I know i can't make it clear, cuz that article is beyond my grasp. But i am pretty sure you can trust my prediction about changes. Personally, if you want to read about this stuff, you can register free online to the New York Times and read Linda Greenhouse, who also covers the Supremes, and she writes in plain English and is very smart.
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