Hatch and Senate ask top court to clarify ruling

WASHINGTON — Senate Judiciary Committee Chairman Orrin Hatch has persuaded the Senate to join him in a rare call for the U.S. Supreme Court to clarify a month-old ruling that Hatch says is wreaking havoc with sentencing of federal criminals.

By unanimous consent, the committee passed a "sense of the Senate" resolution this week. In it, Hatch asked the court to clarify whether federal sentencing guidelines can still be constitutionally applied in light of its Blakely v. Washington decision a month ago.

That decision struck down similar sentencing guidelines in the state of Washington. It said any fact that increases penalties beyond normal sentencing ranges must be presented to a jury and proved rather than being determined by a judge.

A sign of the uncertainty and turmoil created in the federal system by the ruling is that four federal judges in Utah have since taken four different stands on whether federal sentencing guidelines are still constitutional, or how now to sentence criminals.

Judge Paul Cassell 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 that some enhancements to the ruling are unconstitutional but wrote that he could still follow guidelines about lessening (and not exceeding) normal sentences. Judge Dale Kimball expanded a verdict from 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.

Nationally, the 7th Circuit Court of Appeals has 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.

Hatch told the Senate that the ruling has "created angst throughout the federal criminal justice system," and clarification is needed quickly.

He said he had hoped to pass legislation to make clear that the federal guidelines still are constitutional and apply, but "we simply ran out of time" before the Senate begins its month-long August recess.

Hatch added, "I will continue to work with my colleagues over the next several months in preparation of a contingency plan to ensure that regardless of what the Supreme Court decides, we will be able to preserve a system that promotes uniformity and reduces sentencing disparity across this country."

He said one example of havoc from the decision is a West Virginia case in which a drug dealer had been sentenced to 20 years a few days before the Blakely decision, but the sentence was reduced to a mere 12 months afterward.

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

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E-mail: l davidson@desnews.com