High Court Poised to Topple Federal Sentencing Rules

The Supreme Court indicated Monday that it would strike down federal sentencing rules because they allow judges, acting alone, to add to prison terms.

Doing so could have broad legal ramifications, including the possibility that Congress might choose to impose stiff mandatory sentences for a variety of federal crimes.

But if the guidelines were overturned, the justices seemed less certain about what would take their place.

“The whole reason for jury trials is we don’t trust judges,” said Justice Antonin Scalia, a leader of the unusual liberal-conservative coalition that is forcing a major change in how criminals are sentenced.

Scalia and Justice John Paul Stevens, who are on opposite sides of most issues, have spoken for a 5-4 majority in two cases, most recently in June, that say judges may not increase a defendant’s prison term based on “aggravating factors” that were not introduced during the trial.

Allowing that to occur, they said, violates a defendant’s 6th Amendment right to a jury trial.

The cases the court has already decided involved state sentencing guidelines; the two cases the justices heard Monday, the first day of their new term, involved federal guidelines, which were devised to ensure that defendants across the country convicted of similar crimes received similar sentences.

About 64,000 defendants are sentenced each year in federal courts. Currently, most drug and white-collar fraud cases are decided largely by prosecutors and judges, not juries. In 97% of federal cases, defendants choose to plead guilty to at least one offense. If not, the defendants go to a trial before a jury, but often on only one major offense.

If they are found guilty, the defendants come before a judge for sentencing. At that time, the prosecution may provide the judge with information about the specific amounts of drugs found or money lost -- facts that may not have come up during the trial. Under the federal guidelines, the amount of drugs found or money lost can determine the prison term.

Scalia and Stevens say prosecutors should have to present this evidence to a jury, rather than wait until the jury has been dismissed to bring it before the judge as part of sentencing.

A change in the federal guidelines could affect cases in California. The state has no sentencing guidelines but does allow judges to consider “aggravating factors” in determining sentence.

During oral arguments, acting U.S. Solicitor Gen. Paul Clement urged the justices to uphold the federal rules, which came into existence under the Sentencing Reform Act of 1984. He said 1,200 sentences a week could be affected if the court says the rules are unconstitutional.

“Any way you slice it, it’s going to have a tremendous impact,” said Clement, who was once a clerk for Scalia.

“I don’t agree with you,” Scalia responded, wondering why prosecutors could not tell juries about the evidence that called for a harsher prison term.

“What’s the problem there?” he asked.

Clement argued that trials would be more complicated if every significant factor had to be decided by a jury. U.S. courts have always relied on judges to weigh the factors that determine the proper punishment, he said.

“I am not persuaded,” Stevens announced at one point, saying he expected only a small percentage of cases to be affected by the court’s ruling.

“It doesn’t seem like a stretch to me,” added Justice David H. Souter, also rejecting Clement’s contention.

Scalia, Stevens and Souter were joined in the earlier rulings by Justices Ruth Bader Ginsburg and Clarence Thomas. Thomas rarely speaks during arguments, and he said nothing Monday. While Ginsburg asked questions, she too gave no hint she was ready to switch sides.

The four dissenters -- Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Anthony M. Kennedy and Stephen G. Breyer -- rarely find themselves on the losing side in major cases. In their comments Monday, they made clear that they think their colleagues are heading down the wrong road.

Breyer, who played a key role in creating the sentencing guidelines, asked why the law could not be changed to say that judges “may” follow the written guidelines. Currently, the law says judges “shall” follow them.

But Scalia said he did not think judges should have the full freedom to raise or lower sentences as they choose.

“Maybe we should leave it to Congress to decide,” O’Connor offered.

The defense lawyers who appeared Monday tried to reassure the justices in the majority.

T. Christopher Kelly of Madison, Wis., who was representing one drug defendant, said juries should hear all the evidence that justifies a harsh prison term.

“It would not be all that complex to charge the jury,” he said. “We give jury instructions that are complicated all the time.”

Rosemary Scapicchio, a Boston lawyer who was representing the other drug defendant, said the court should not throw out the sentencing guidelines entirely. Instead, she said, it should simply stop judges from increasing sentences on their own.

Presenting the evidence to the jury is fair and reasonable, she argued. “The only thing that changes is the identity of the fact finder,” she said.

Based on the information provided to the judge after conviction, her client, Ducan Fanfan, would have received 16 years in prison under the federal guidelines. Based on what the jurors heard in court, he would have been sentenced to six.

The justices will meet behind closed doors this week to vote on the cases heard Monday. They are U.S. vs. Booker and U.S. vs. Fanfan. Decisions can be expected in several months.