The Supreme Court ruled yesterday that federal judges are no longer bound by mandatory sentencing guidelines but need only consult them when they punish federal criminals.
Under the ruling, federal judges will be free to decide for themselves whether defendants deserve sentences longer or shorter than the ranges prescribed by the guidelines, but their decisions will be subject to reversal if appeals courts find them unreasonable.
The guidelines were established in the 1980s as part of a bipartisan effort to ensure that the same crime would receive about the same punishment nationwide. But since then, they have become the source of intense controversy in the federal courts, subject to criticism across the ideological spectrum. Conservatives and prosecutors have said that some judges have tried to coddle criminals by eluding the guidelines. Defense lawyers and some judges have said they have resulted in excessive sentences for some defendants.
The divided outcome emerged from unusual twin majority opinions in United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105. One group of five justices said the current administration of the guidelines violates defendants' right to a jury trial because judges impose sentences under them based on facts that a jury did not find beyond a reasonable doubt.
Another group of five justices explained why the guidelines must nevertheless continue to shape sentencing decisions even if judges are no longer legally bound to follow them.
The modified system, Justice Stephen G. Breyer wrote on behalf of the five justices who supported it, will help "avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary."
While Breyer wrote the crucial opinion, the pivotal player in the case was Justice Ruth Bader Ginsburg, the only one of the nine justices who voted both to hold the current sentencing system unconstitutional and to preserve the guidelines in voluntary form.
Joining Breyer and Ginsburg were Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Anthony M. Kennedy.
The other majority consisted of Ginsburg and Justices John Paul Stevens, Antonin Scalia, David H. Souter and Clarence Thomas.
Stevens sharply criticized the court's split decision, calling Breyer's solution a "gross impropriety." Scalia labeled it a recipe for "havoc" in the federal criminal justice system.
While the decision will preserve at least some role for the sentencing guidelines, the precise practical impact beyond that remains to be worked out.
Like a twist of a gigantic Rubik's Cube, the court's decision changed the entire structure of criteria facing thousands of federal criminal defendants, the lawyers who represent them, the prosecutors who charge them and the judges who sentence them.
As one example of the Breyer opinion's wide impact, the new appellate standard it introduces for sentences, "reasonableness," effectively strikes down the Feeney Amendment, a 2003 law that had further restricted federal trial judges' latitude in sentencing by giving appeals courts more power to overturn their decisions.
The federal courts issue more than 60,000 criminal sentences each year, according to the Justice Department.
The likeliest short-term outcome, legal analysts said yesterday, is more litigation, as defendants seek to challenge sentences imposed under the previous system, and as some judges who have criticized the guidelines as too harsh test their new freedom by imposing lesser sentences where they think they are justified.
Critics who regard the sentencing guidelines as too harsh said the court had cheated criminal defendants of an expected victory.
"This is actually a bittersweet day for the criminal defendants. On one hand, the right to a jury trial is vindicated, but on the other hand, in the remedy, it is undercut," said Jon Sands, a federal public defender in Arizona and chairman of the Federal Defender Sentencing Guidelines Committee.
For its part, the Bush administration reacted warily to the court's ruling, with Assistant Attorney General Christopher A. Wray declaring that the Justice Department was "disappointed that the decision made the guidelines advisory in nature," but noting that "federal sentencing guidelines remain a critical part of the process to achieve justice."
The split decision was a surprise ending to a long-running drama within the court that seemed to reach a turning point last June, when the court ruled, 5 to 4, that a state sentencing guideline system that permitted a judge to "enhance" a defendant's sentence based on his own fact-finding violated the constitutional guarantee of a trial by jury. The decision, Blakely v. Washington, was the latest result of the legal revolution set in motion in 2000 by the court's 5 to 4 decision in Apprendi v. New Jersey.
In Apprendi, the court ruled that a judge could not add two years to a 10-year sentence for a weapons crime because he had found that it was motivated by racial bias. A sentence could only be enhanced, the court ruled, based on facts found by a jury beyond a reasonable doubt, lest the Sixth Amendment guarantee of a jury trial be violated.
The logic of Apprendi and Blakely seemed to apply to -- and therefore threaten -- the federal sentencing guidelines, which are written by a commission Congress set up in 1984 to help smooth out what once were huge differences in sentences imposed by judges nationwide for the same criminal conduct.
The guidelines, which took effect in 1987 and are periodically updated, were the fruit of a sentencing-reform movement led by strange political bedfellows. Liberal Democrats who objected to wide inequality in sentencing were joined by conservative Republicans who wanted to force judges to give out stiffer sentences across the board.
As chief counsel to the Senate Judiciary Committee, and later as a federal appeals judge, Breyer played a key role in drafting the sentencing legislation and the guidelines.
Thick as a phone book, the guidelines supply the criteria judges are supposed to follow when they choose to increase a sentence above a certain range or drop it below that.
Freddie Booker's case was a fairly typical one. A jury convicted him of trafficking 92.5 grams of cocaine, a crime punishable by no more than 23 years and 10 months in prison under the guidelines. But at a post-trial sentencing hearing, the judge found that he had probably had 566 grams of cocaine, and had obstructed justice. That bumped Booker's sentence up to 30 years.
As the U.S. prison population has swelled, the guidelines have come under fire from critics who say that they are packing federal penitentiaries with nonviolent drug offenders.
But both Republican and Democratic presidents have credited the guidelines with helping to reduce the nation's violent-crime rate, which hit a 30-year low in 2003, according to the Justice Department.
Breyer himself remains deeply attached to the guidelines and has been fighting to preserve them at the court ever since Apprendi was decided.
His allies in the battle were Rehnquist and O'Connor and Kennedy.
Until yesterday, however, they were consistently outnumbered by a liberal-conservative alliance made up of Stevens, Souter and Ginsburg on the left and Scalia and Thomas on the right.
And during an oral argument on the Booker and Fanfan cases, which the court heard Oct. 4 on an expedited basis because of the uncertainty its Blakely ruling had created in the federal courts, there was no indication of any change in the 5 to 4 lineup that decided Blakely.
But Breyer apparently succeeded in convincing Ginsburg that it was possible to compromise.
"It is a remarkable act of judicial jujitsu that Breyer's managed to pull off," said Frank O. Bowman, a professor of law at Indiana University.
Sentencing Standards No Longer Mandatory
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