Diagramming Sentences 

Federal sentencing guidelines hang in limbo after recent Sixth Circuit Court decision.

If you were going to be sentenced in Memphis for a federal crime, July 15th and 16th were probably good days to have it done.

In an opinion on a Memphis case, the Sixth Circuit Court of Appeals ruled July 14th that the federal sentencing guidelines should be just that -- guidelines. Federal judges long bound by dictates stemming from the 1984 Sentencing Reform Act -- a virtual diagram of exactly how much time an offender should serve based on the crime and aggravating factors -- were suddenly free in the Sixth Circuit states of Michigan, Ohio, Kentucky, and Tennessee to use their discretion.

In June, the U.S. Supreme Court handed down a seemingly innocuous decision in Blakely v. Washington. In the Blakely case, the defendant pled guilty to kidnapping and using a firearm during a domestic dispute, a crime that in Washington state carries a 49- to 53-month sentence. Under the state's law, however, the judge was able to take aggravating factors into account. Deciding that the defendant's offense entailed deliberate cruelty, the judge sentenced him to 90 months. When the case worked its way up to the Supreme Court, however, the justices determined the sentence to be unconstitutional because the judge -- not a jury -- decided the facts surrounding the aggravating factors.

"It was a bit of a sleeper decision," said Steven Mulroy, an assistant law professor at the University of Memphis. "It came down along with Guatanamo Bay and terrorists. Those are all important issues, but in the day-to-day administration of justice and in the amount of defendants it will affect, it's clear Blakely is the 800-pound gorilla."

Though the Supreme Court's opinion in Blakely concerned a sentencing in Washington state, federal judges paid attention because the federal guidelines were very similar. What's more, the court's opinion seemed to implicate the constitutionality of sentencing guidelines.

"It's a significant transfer of authority from the prosecution, on one hand, to juries and, secondly, judges, on the other hand," said Mulroy. "The federal sentencing guidelines gave federal prosecutors enormous power and enormous discretion. ... Because of the rigidity of the sentencing process, judges' hands were tied."

Locally, assistant U.S. attorney Vivian Donelson said she's not certain how the rulings will eventually affect what her office does. "The Department of Justice and this office are analyzing to see what ramifications and impact it will have," she said. When Blakely first came down, she saw lawyers requesting continuances to get their bearings on the ruling.

The issue became clearer for local federal judges when the Sixth Circuit Court of Appeals issued an opinion in mid-July on a Memphis case, U.S. v. Montgomery.

In the wake of Blakely, the Montgomery case gave the judges some direction.

"Under the Constitution, a defendant is entitled to a trial by jury, and I suspect that's the primary part of the judges' rationale both in the Supreme Court and the Sixth Circuit [opinions]," said Mulroy. "A significant undercurrent is that most federal judges have had a problem with the sentencing guideline regime. They resented the fact that their power had been taken away."

Across the county, many judges also thought the guidelines were too harsh. Legislators -- the ones determining how much time fits the crime -- are not in a position to consider specific cases, and they have an incentive when it comes to harsh sentencing. No elected official wants to be accused of being "soft on crime."

While the change clearly spelled out how judges were to conduct business, Donelson said it hasn't made much difference in sentencing. "We have had several sentencing hearings since Montgomery said the guidelines were advisory, and we have not seen sentences that are significantly lesser or greater than the guidelines," she said.

But whatever newly restored powers the judges had under Montgomery were short-lived. Five days later, the Sixth Circuit decided to re-hear the case en banc, which means all the judges will sit to hear the case, not just a three-judge panel. The previous opinion is invalidated, and the case goes back onto the docket as a pending case. The case is expected to be heard sometime in August.

In all probability, the U.S. Supreme Court will be asked to decide on sentencing guidelines within a year or two.

In the meantime, Mulroy thinks more juries will be asked to determine specific facts about the nature of a crime: Did the defendant use a firearm? Did he or she prey on a particularly vulnerable victim?

"Expect dramatic change in the way sentencing is done in the federal system," Mulroy said.

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