ASHINGTON,
Aug. 2 - The Supreme Court on Monday agreed to rule on the constitutionality
of the guidelines for federal criminal sentences. By acting in its summer
recess, the court signaled a sense of urgency about resolving some of the
turmoil in the lower courts stirred up by a decision from the Supreme Court
itself.
The court set a hearing for the afternoon of opening day of the justices'
new term, Oct. 4, to review two appeals by the Justice Department.
At the heart of the cases is the impact, if any, on federal sentencing
guidelines of a ruling that the court issued less than six weeks ago, in the
case of Blakely v. Washington, involving state sentencing guidelines. In the
aftermath of that ruling, which strictly limited judges' power to increase
sentences, lower courts have issued more than three dozen rulings, sometimes
flatly contradictory, in federal cases.
Many of those judges have ruled the guidelines unconstitutional. A
federal judge in Boston, Nancy Gertner, said in an opinion last week that
the Blakely decision "has effected nothing less than a sea change" in
federal criminal sentencing.
Justice Sandra Day O'Connor, who dissented in the 5-to-4 Blakely
decision, told a group of federal judges last month that the decision "looks
like a No. 10 earthquake to me."
The order issued by the justices on Monday sets review on two issues:
whether the June 24 decision means that the Sixth Amendment limit on letting
judges increase sentences applies to the federal guidelines and, if it does,
whether the entire guideline system set up by Congress in 1984 is
unconstitutional because Congress would not have intended to create the
system at all without assigning judges that role.
The Justice Department's top advocate before the Supreme Court, Acting
Solicitor General Paul D. Clement, raised those issues in two appeals.
Although criminal defense lawyers urged the court to expand its review
beyond the specific questions that Mr. Clement posed, the justices declined
to do so after Mr. Clement said that the issues he framed would set the
stage for a wide-ranging review of the guidelines' validity.
The guidelines, created by Congress in an effort to make sentencing in
federal cases more uniform, set up a series of punishment ranges for
specific federal crimes, and a judge generally must follow those. But the
guidelines also empower the judge to increase a sentence, based upon the
judge's conclusions that the crime may have been more serious than the jury
found.
One of the cases that the court will hear in October involves Freddie J.
Booker, 50, of Racine, Wis., who was convicted of possessing crack cocaine
and distributing it. He was sentenced to 30 years in prison by a federal
judge, even though a jury had concluded that Mr. Booker actually distributed
a lesser amount of cocaine that would have resulted in a lesser sentence
than the judge imposed. The United States Court of Appeals for the Seventh
Circuit, in Chicago, ruled June 30 that the Blakely decision nullified that
longer sentence, and it ordered a new sentencing hearing.
The other case involves Ducan Fanfan, 30, of Somerville, Mass., who was
convicted in Portland, Me., of conspiring to distribute crack cocaine. The
judge, acting after the Supreme Court ruling in the Blakely case, sentenced
Mr. Fanfan to 6 years, instead of the 15 to 19 years specified in the
guidelines. The justices agreed to review that case even before the United
States Court of Appeals for the First Circuit, in Boston, had a chance to
rule on it.