Discretion in sentencing welcomed

Jace Radke

Friday, Jan. 14, 2005 | 8:47 a.m.

This week's U.S. Supreme Court decision freeing judges from using mandatory sentencing guidelines could lead to more appeals of sentences and allow judges more discretion in how they punish federal criminals.

"The ruling makes the guidelines advisory instead of mandatory, and we're very hopeful that our judges will seize on the opportunity for more discretion in sentencing," said Franny Forsman, Federal Public Defender for Nevada. "I think judges should be allowed to have compassion and be able to see people and not file folders."

Federal sentencing guidelines have been used by federal judges for more than 20 years in determining punishments for federal criminals. The guidelines, used since 1984, were put into place so that sentencing for crimes would be consistent across the country.

The guidelines provide ranges that judges can sentence a convicted defendant to for specific crimes, taking into account criminal history and other factors, but the Supreme Court's ruling now allows judges to order sentences outside those guidelines.

In an e-mail response to questions regarding the Supreme Court rulings, Dan Bogden, U.S. attorney for the District of Nevada, stated that the Justice Department and his office remain committed to the core principles in the Sentencing Reform Act, which mandates fair, tough, predictable, and proportionate sentences.

"We will continue to urge courts to sentence offenders under the sentencing guidelines in order to ensure that sentences are determined in accordance with these important principles," Bogden said.

Forsman said that most of the federal judges in Nevada have stuck closely to the guidelines in the past. Many judges have always seen the guidelines as a tool to help in sentencing, but not something that necessarily dictates what they must do, federal judiciary officials said.

The guidelines have been controversial, with some prosecutors saying that some judges disregard the guidelines and hand out light sentences, while some defense attorneys have said that the guidelines are inflexible and lead to excessive sentences for some defendants.

The short-term outcome of the ruling could be delayed sentencing hearings across the country as defense attorneys digest the decision and determine how it affects their clients.

A sentencing scheduled this week before U.S. District Judge Lloyd George has already been continued because of the decision.

The Supreme Court's decision was based on two cases -- U.S. v. Booker and U.S. v. Fanfan -- challenging the federal sentencing guidelines in the wake of the Court's June decision in Blakely v. Washington that struck down the sentencing guidelines in Washington.

The federal courts issue more than 60,000 criminal sentences a year. In Nevada in the past three years there have been an average of about 680 federal defendants found guilty each year. A small percentage of those convicts are convicted of misdemeanors and are not sentenced under the guidelines, but the vast majority are, said Natalie Collins, a spokeswoman for the U.S. Attorney's Office for the District of Nevada.

Some legal analysts have predicted that the Supreme Court's ruling could mean a surge in appeals from convicted criminals, but government prosecutors said that might not be the case.

"We anticipate that there will be litigation related to the retroactive effect, if any, of U.S. v. Booker," Bogden said.

No circuit court of appeals has held that the line of cases following the Supreme Court's decision in Apprendi v. New Jersey, the seminal case in this area, should be applied retroactively, and it will be argued that the same should be true concerning the Booker case, Bogden said.

Forsman said she thought appeals would have to be looked at on a case-by-case basis.

"In some cases there could be a worse sentence handed down to a defendant," Forsman said of cases where a judge may have given a lighter sentence to a defendant despite a guideline range calling for harsher punishment. Still, Forsman said that the added flexibility the decision affords judges could be a help to defendants who truly have extenuating circumstances. In the past defense attorneys have argued different hardships that their clients face in order to convince a judge that a case is unique enough to put it outside of the heartland of the sentencing guidelines.

Now extenuating circumstances surrounding a defendant may be given more weight.

"The example that gets a lot of attention is the girlfriend of a drug dealer, who under the guidelines may call for the same sentence," Forsman said. "It's going to be a different kind of advocacy for us."