Sentencing angst deepens

WASHINGTON — As a sign of the uncertainty and turmoil created by a new U.S. Supreme Court decision, four federal judges in Utah have taken four different stands on whether federal sentencing guidelines are constitutional, or how to now sentence criminals.

In other words, the same criminal could receive four quite different sentences depending on which judge handles his case.

"The criminal justice system has begun to run amok," Senate Judiciary Committee Orrin Hatch, R-Utah, lamented Tuesday in a hearing about effects of the new decision. He said the disagreement among Utah judges is an example of angst nationally.

At issue is the 3-week-old decision in Blakely v. Washington, where the Supreme Court said mandatory sentencing guidelines developed by the state of Washington are unconstitutional. It said any fact that increases penalties beyond normal sentencing ranges must be presented to a jury and proved and not determined by a judge.

While the high court did not rule specifically on federal guidelines in use for the past 20 years — created by legislation Hatch helped push — many judges have since ruled they too are unconstitutional because of their similarities to Washington's state system.

Utah U.S. District Judge Paul Cassell testified that he and fellow judges in Utah disagree widely — as do judges nationally — on how now to proceed with sentencing.

Cassell himself wrote an opinion saying federal guidelines are now unconstitutional in their entirety. Chief Judge Dee Benson wrote in another decision that they are still in force until an appeals court with jurisdiction says otherwise.

Judge Ted Stewart ruled they are unconstitutional but wrote that he could still follow guidelines about lessening (and not exceeding) normal sentences. Judge Dale Kimball expanded a verdict form in a drug-dealer case to ask the jury to decide issues affecting sentencing that judges themselves would normally determine, such as the volume of any illegal drugs distributed and the amounts of any money laundered.

Cassell also said, "Other judges within the District of Utah continue to consider these questions. A number of sentencings have been delayed because of Blakely and various change-of-plea hearings have been rescheduled."

He listed wide differences among other judges nationally, too. For example, the 7th Circuit Court of Appeals declared the federal sentencing guidelines unconstitutional, but the 5th Circuit upheld them. Meanwhile, the 2nd Circuit has asked the Supreme Court to decide whether Blakely applies to federal guidelines.