Orrin Hatch

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.

"Blakely v. Washington threatens to crumble the very foundation of the federal system of sentencing guidelines that Congress established 20 years ago," said Sen. Patrick Leahy, D-Vt., ranking Democrat on the committee.

"Blakely threatens a return to the bad old days of fully indeterminate sentencing when improper factors such as race, geography and the predilections of the sentencing judge could drastically affect the sentence," he said.

Hatch agreed. "I fear that some judges might view Blakely as an opportunity to selfishly garner judicial power in the hopes of restoring unlimited judicial discretion with respect to sentencing," he said.

Hatch said some decisions in the past two weeks show such a trend. For example, he noted that a convicted drug dealer in West Virginia was sentenced to 20 years a few days before the Blakely decision, but had it reduced to a mere 12 months afterward.

Also, a man who tied up the mall in Washington, D.C., for two days with a tractor he said held explosives was sentenced to six years just before the Blakely decision, but then was re-sentenced to 16 months, which was essentially time already served.

Hatch said conservatives and liberals are working on a temporary fix to get around the problem by technically raising the top of all normal sentencing ranges to the maximum allowable by law. It would likely sunset in a year or two and allow exploration of other potential solutions.

Meanwhile, Bush administration representatives testified they believe federal sentencing guidelines are still in effect and will withstand any legal challenges. However, they are encouraging judges also to issue "backup" sentences in case the guidelines are overturned.

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