Sen. Orrin Hatch, R-Utah, went on the defensive this past week, trumpeting the benefits of the disputed federal sentencing guidelines in a commentary published in a Washington, D.C-based legal newspaper.

The Oct. 4 edition of the Legal Times hit newsstands the same day the U.S. Supreme Court opened its 2004-05 term with arguments in two unrelated cases that question the constitutionality of the 17-year-old guidelines. The review follows a June decision from the court that struck down similar guidelines in Washington state and threw federal courts nationwide into turmoil.

In the months following the ruling in Blakely v. Washington, federal judges began applying different approaches when sentencing criminal defendants. It began with Utah U.S. District Judge Paul Cassell, who immediately declared the guidelines unconstitutional and refused to apply them in cases with Blakely issues. Other judges have taken different approaches, resulting in what Hatch called a "piecemeal application" of the guidelines in violation of the Sentencing Reform Act of 1984.

"As one of the framers of the act, I know that we intended the federal sentencing guidelines to be applied as an integrated and cohesive whole," wrote Hatch, the chairman of the Senate Judiciary Committee. "The guidelines establish an interlocking system of calculations and calibrations that are part of a single sentencing equation."

In Blakely, the Supreme Court found that facts commonly used to increase a defendant's sentence — such as the amount of drugs in a drug case or money in a fraud case — must first be proven to a jury in order to satisfy the Sixth Amendment right to a jury trial.

Hatch urged the Supreme Court to consider Congress' intent in passing the Sentencing Reform Act when deciding the fate of the guidelines.

"The 1984 act represents Congress' considered response to eliminate unwarranted sentencing disparities and to promote truth in sentencing," Hatch wrote, adding the guidelines represent a "middle-ground approach" between indeterminate sentencing, in which judges have considerable amounts of discretion, and rigid determinate sentencing.

Since their adoption in 1987, the guidelines have not been without their critics. Many judges and legal scholars have spoken out against the system, which they say takes the actual judging out of the hands of judges.

In a 1999 speech, a senior Utah federal judge decried the Sentencing Reform Act and urged Congress to revisit the issue.

"Under the current system . . . the exercise of judicial judgment is either nil or negligible," U.S. District Judge Bruce Jenkins said, adding the guidelines have resulted in the exact opposite of what they intended to do. Sentences have become more dishonest, disparate and disproportionate under the guidelines, he said.

If the guidelines are ultimately struck down, Hatch said Congress will be left with several options to rework federal sentencing laws:

"The best approach may be to work within the existing system to fix its problems rather than to reject it wholesale — leaving the entire criminal justice system in a state of chaos."

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E-mail: awelling@desnews.com