Response Mixed to Ruling That May Set Inmates Free

An appellate court’s decision invalidating a package of federal sentencing guidelines drew mixed reviews in San Diego on Wednesday, as defense attorneys claimed that it makes many of their imprisoned clients eligible for immediate release and prosecutors vowed to seek a stay of the ruling until the issue can be decided by the U. S. Supreme Court.

On Tuesday, the U. S. 9th Circuit Court of Appeal struck down the controversial guidelines, concluding that the judicial commission that wrote them should never have been assigned such a delicate and “quintessentially political” task.

In its 2-1 opinion, the court said the job of fixing punishment for crime is better left to Congress or the executive branch, and held that asking judges to serve on the commission “threatens to squander the precious aura of judicial impartiality, to the ultimate detriment of the judiciary and the society it serves.”

The decision is the first appellate ruling on the guidelines, which went into effect Nov. 1 and stripped judges of discretion in sentencing by establishing a narrow range of allowable penalties for every federal crime.

Prosecutors said the decision means all sentences handed down in federal court in the 9th District, which covers California and eight other Western states, now must comply with the law in effect before Nov. 1. That means federal judges, many of whom had already declared the guidelines unconstitutional and did not abide by them, again may exercise broad discretion in sentencing, observing only certain minimum and maximum penalties spelled out in statutes.

“The opinion is binding on us and, beginning today, all defendants are entitled to be sentenced under the old law,” Assistant U. S. Atty. Roger Haines said Wednesday.

Justice Department to Seek Stay

Haines said the Department of Justice will ask the 9th Circuit Court to stay its decision until the Supreme Court weighs in with its ruling on the issue. The high court is scheduled to hear oral arguments on the guidelines Oct. 5.

“We’ve got an administrative problem because the people being sentenced now are really in a window that may ultimately close for everyone else,” Haines said. “For the sake of uniformity, we think a stay is really the best solution.”

But defense attorneys disagreed, and argued that it would be illogical for the court to grant a stay, given its opinion that the guidelines are unconstitutional.

“I don’t expect them to grant it,” said Judy Clarke, executive director of Federal Defenders Inc., which is among a host of organizations nationwide that have challenged the guidelines. “It really would be a little odd for the court to say, ‘Well, we think they’re unconstitutional, but they’re constitutional for the time being.’ ”

Tuesday’s decision is likely to be welcome news to many offenders sentenced under the new guidelines, which wiped out the federal parole system, all but eliminated probation and were viewed as excessively harsh by many defense lawyers.

The most dramatic impact, Clarke said, probably will be on imprisoned defendants who were denied credit for so-called “good time” under the new sentencing system.

“It used to be you could work down your sentence substantially with good behavior in prison,” Clarke said. But the guidelines restricted that substantially. “Now that they’ve been invalidated, I’d suspect we’ve got maybe 50 clients who are eligible for release immediately.”

Unsure of Number

John Shaw, regional counsel for the federal Bureau of Prisons, said Wednesday that he was uncertain how many cases the ruling will affect. But he said it would be a large number.

“We’re trying to get a handle on the number involved to find out which cases--like the shorter sentence ones--we will have to move on immediately,” Shaw said. “When you consider how busy a district San Diego is, I think you’re talking about a fair number of people who will be released almost immediately.”

Most inmates likely to qualify for quick release are those convicted of misdemeanors and petty offenses, he said. But those serving felony sentences may have cause to celebrate too, Shaw said, because the court’s decision also reinstates the old federal parole system.

Plea Deluge Expected

In addition, defendants who received stiffer sentences under the guidelines than they would have under the old law are expected to deluge the district courts with requests for resentencing.

“I have to check my files, but I suspect I have clients who will want to be resentenced,” said San Diego attorney Michael Crowley. Clarke estimated that 60 felony defendants represented by Federal Defenders may wish to be resentenced.

But not all of those sentenced under the new laws are likely to be pleased by Tuesday’s decision. Clarke said she has an appeal pending on behalf of a client who was sentenced to two years in prison by a judge who did not adhere to the new guidelines. In the appeal, Clarke argues that the judge should have observed the guidelines, which set a term of one year for the offense.

“In most of our cases here, people will be better off under the old law,” Clarke said. “But there are those who will be hurt.”

Beyond San Diego, others opposed to the guidelines heralded the 9th Circuit’s decision and said it bodes well for their chances at the country’s highest court.

“I think it gives us a significant push toward ultimate victory at the Supreme Court,” said Alan Morrison, an attorney with the Public Citizen Litigation Group in Washington. “I think it’s particularly heartening that two judges who no one would accuse of being activist or liberal found the statute unconstitutional.”

The opinion was written by Judge Alex Kozinski, a Reagan appointee considered one of the court’s leading conservatives. He was joined by Judge Melvin Brunetti. Judge Charles Wiggins dissented.

Morrison said about 150 federal judges so far have ruled the guidelines are unconstitutional and have been sentencing under the old system. The issue is scheduled to be heard again by an appellate court in September in New Orleans.