cannabisnews.com: Federal Sentencing Guidelines Not Mandatory





Federal Sentencing Guidelines Not Mandatory
Posted by CN Staff on January 12, 2005 at 15:06:43 PT
By Fred Barbash, Washington Post Staff Writer
Source: Washington Post
The Supreme Court today declared unconstitutional a portion of the nation's federal sentencing law and said that federal judges are no longer obligated to follow the controversial system of sentencing guidelines established by Congress in 1984. The long-awaited decision, one of the most significant rulings in a criminal case in years, effectively converted the guidelines from mandatory status to advisory status, meaning that judges must consider them rather than necessarily follow them.
The greatest uncertainty today was the extent to which the ruling will permit appeals by individuals already sentenced under the guidelines.The central problem with the guidelines, the court said in its 5-4 decision, is that they allow convicted criminals to have their sentences increased on the basis of facts that are unproven before a jury in court. In one of today's cases, for example, a judge increased the sentence of a Wisconsin man by 10 years for possessing more crack than the jury found he had.In a case last year, Blakely v. Washington, the court struck down Washington state's sentencing guidelines because, like the federal guidelines, they permitted judges to boost sentences based on their own post-conviction fact-finding. The practice, the court said, violates the right to a trial by jury guaranteed by the Sixth Amendment to the Constitution.Although the court said in Blakely that it did not address the federal guidelines, the similarities between Washington's system and the federal system were such that defense lawyers across the country immediately began bombarding courts with Blakely challenges to their clients' sentences. Lower courts have issued differing rulings in response, and some federal prosecutors have felt obliged to redraft indictments to make sure they conform to Blakely. The justices were greatly divided in today's decision in United States v. Booker, over the constitutional argument as well as over the remedy.One opinion was written by Justice John Paul Stevens and joined by Justices Antonin Scalia, David Souter, Clarence Thomas and Ruth Bader Ginsburg. All five agreed that the practice violated the Sixth Amendment. All in the group but Ginsburg, however, said the remedy should be to let juries make the determination about enhancing a sentence.Another group of five, led by Justice Stephen Breyer and joined by Ginsburg, among others, held that the only remedy was to invalidate part of the actual law."So modified," Breyer wrote, the guidelines become "effectively advisory." The holding permits a judge to "consider guidelines ranges" for sentencing but "permits the court to tailor the sentence in light of other statutory concerns as well."Breyer, joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Anthony Kennedy, restated their view that the sentencing guideline system does not violate the constitution at all. "The Court," Breyer wrote, "holds that the Sixth Amendment requires a jury, not a judge, to find sentencing facts -- facts about the way in which an offender committed the crime -- where those facts would move an offender from lower to higher Guidelines ranges. . . . I find nothing in the Sixth Amendment that forbids a sentencing judge to determine the manner or way in which the offender carried out the crime of which he was convicted."In 1984, Congress established the United States Sentencing Commission as an independent agency within the judicial branch. The commission's first set of guidelines took effect in 1987 and survived a Supreme Court test unrelated to the Sixth Amendment in 1989. The judges and other experts who make up the seven-member panel amend the guidelines each year, after Congress has had 180 days to veto any proposed changes. Under the guidelines, judges are given a variety of factors to consider in deciding how harshly to punish within the range of penalties established by law. In a typical case, such as one before the court now, U.S. v. Booker, No. 04-104, an accused drug trafficker either pleads guilty or is convicted by a jury of selling cocaine, and then a government probation officer presents the judge with findings as to the exact amount of drugs involved. A jury found that Freddie Booker had trafficked more than 50 grams of cocaine. The judge found that the actual amount was 658.5 grams, that Booker had perjured himself at trial and that he had 23 prior convictions. The result under the guidelines: a sentence of 30 years, far longer than Booker would have gotten for trafficking 50 grams. In its brief defending the guidelines, the Bush administration argued that Blakely should not apply to the federal guidelines because, unlike the Washington state guidelines, they were created not directly by statute but by a commission within the judicial branch. Stevens and a majority dismissed that contention as "constitutionally irrelevant." The Sixth Amendment applies to guidelines as well as to statute, he wrote."This is a major victory for those federal judges who have long complained" about the restrictive aspects of the guidelines, said Thomas C. Goldstein, who represented the National Association of Criminal Defense Lawyers in the case. "Where federal judges previously were required to follow this rigorous sentencing guideline system, now those guidelines are advisory."It is, he said, "the most significant criminal law ruling in a decade" though "its net effect in individual cases is yet to be seen."Dean Strang, co-counsel for defendant Freddie J. Booker, said the "net effect is 'guidelines lite.' . . . The guidelines will no longer be binding." Judges will "now treat the federal guidelines in their entirety as advisory," to be consulted for determining a sentence's reasonableness."Up until today, absent extraordinary circumstances, federal judges were to impose a sentence within a binding guideline range."Complete Title: Supreme Court Says Federal Sentencing Guidelines Not Mandatory Source: Washington Post (DC)Author: Fred Barbash, Washington Post Staff WriterPublished: Wednesday, January 12, 2005Copyright: 2005 Washington Post Contact: letterstoed washpost.comWebsite: http://www.washingtonpost.com Related Articles:Court Orders Changes in Sentencinghttp://cannabisnews.com/news/thread20116.shtmlSentencing Ruling May Confusehttp://cannabisnews.com/news/thread20113.shtmlFederal Sentencing Rules Are Wrongly Appliedhttp://cannabisnews.com/news/thread20112.shtml 
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Comment #9 posted by kaptinemo on January 12, 2005 at 18:38:04 PT:
Buckling under the crushing weight
of this 20 year old mistake.They were warned, way back then, that it would happen...and now it has. Cooler, wiser heads had argued that it would be best to consider the eventual costs of the 'Get tough!" approach, as it was inherently based upon deliberately stoked hysteria later proven as such ("Crack babies!" "Gang members with bazookas attacking police stations!"). But as usual, the herd was sufficiently stampeded, thanks to sensationalist media reports, to cause legislators to whip themselves into a lather in their haste to appear "Tough on drugs!" so they prove to their constituents that they were 'doing something'. Sooooo predictable.... But...the party has been over since the economy went into the toilet in 2000. WE SIMPLY CANNOT AFFORD THE WAR ON DRUGS, WITH ALL IT'S HIGH PRICED BELLS AND WHISTLES. We can't afford to house all those prisoners. We can't afford the vast infrastructure needed to maintain the War on Drugs. (We can't afford the ruinous effects upon our rights, for that matter, but most never tumble to that, when all they see are dollars signs on a ledger.) So now? Now you will begin to see judges *interpret for themselves*, whether it was the original intent to do so or not, those 'guidelines'. Many judges are have been in open revolt against the mandatory minimums for some time, and here is their first victory.
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Comment #8 posted by siege on January 12, 2005 at 18:18:34 PT
Americans for Safe Access
Let's all help in this!!Stacey Swimme I. Action of the Week - Turn up the Heat on HHS!II. Legal TipIII. Activist SpotlightI. Action of the Week:Collect signed postcards to send to HHS.The Department of Health and Human Services is expected to respond to our DQA petition on February 4th, 2005. Let’s blast them with postcards to demand that they recognize the scientific research that proves cannabis is an effective medicine.How many postcards can you get signed this week? We will send you postcards that your friends, family and/or colleagues can sign. Send them back to us by January 25th so we can prepare them for a mass-delivery at the HHS.Our goal is to get 10,000 postcards signed by January 25th! Email or call Stacey at 888-929-4367 x 306 to order as many postcards as you can get signed over the next 13 days!If you’d like to sign a postcard, but you are not able to circulate more, we will send you a postcard that you can send directly to the HHS!II. Legal Tip of the Week:Being a patient does not make it legal or acceptable to be under the influence while driving and you will be issued a DUI offense if you tell the officer that you medicated before getting behind the wheel.If you are stopped by a police officer while driving and the officer discovers that you are a patient or are in possession of medicine, you will likely be asked “When was the last time you smoked?” You do NOT have to answer any of the officer’s questions! Even if it’s been more than 5 hours since you last consumed your medicine- don’t tell the officer anything! Provide the officer with your driver’s license, registration/insurance and remain silent. You never have to answer any questions without the presence of your lawyer.III. Activist Spotlight:We wanted to take the opportunity this week to highlight the great activism and organizing being done in Southern California by the San Diego Americans for Safe Access chapter!They’ve done an amazing job informing their community about medical marijuana, advocating for safe access for patients in their area and creating space for people to educate themselves about issues related to medical marijuana. Check out their website for more details about their work: http://www.sdasa.4mg.comIf you live in the San Diego area and would like to know more about SD ASA meetings and activities, please call 619-992-8082 or Email sdasa420 yahoo.com -- 
Stacey Swimme
Field Manager
Americans for Safe Access
1700 Shattuck Ave. #317
Berkeley, CA 94709
510-486-8083
888-929-4367
www.SafeAccessNow.org
 
Join the fight for medical marijuana rights!
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Comment #7 posted by siege on January 12, 2005 at 17:34:10 PT
FoM & #6
 Bush administration don't want this homeopathy, or any of the home remedies medicine, medicinal marijuana All they want are prescription drugs!
So they can keep the money coming to there banks. Merck Mevacor OTC Patient Ability To Self Diagnose To Receive ...
FDA Advisory Committee - 2 hours ago... added that “the main concern of myopathy risk in the nonprescription setting is whether consumer behavior would differ from that in prescription use which ...
FDA Wants More Over-the-Counter Drugs TheStreet.comDrug Free ZonesJustice Goldberg, concurring, devoted several pages to the 
9 th Amendment.''The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. . . . To hold that a right so basic and fundamental and so deep-rooted in our society
as the right of privacy -------------------------- 
infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment.
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Comment #6 posted by Taylor121 on January 12, 2005 at 17:04:45 PT
Drug Free Zones in Texas: 1st bill of its kind TX
A first of its kind measure introduced In the Texas Legislature would allow the City of San Antonio to exclude convicted drug criminals from certain parts of the city, 1200 WOAI news reported today. State Representative Ruth Jones McClendon (D-San Antonio) says her controversial bill is written to apply to San Antonio only. The City Council would designate an areas a 'drug free zone.' "Any person who is convicted of a drug offense could be excluded from this area for ninety days on a first offense," McClendon told 1200 WOAI news. "They couldn't go into this area for one year if they are convicted of a second offense." The measure also calls for a 90 day exclusion for certain people who are simply arrested on drug offenses. McClendon's bill is based on the concept of 'civil exclusion' which has been tested by Bexar County District Attorney Susan Reed to prevent gang members from associating from one another. While 'restraining orders' which prohibit individuals from having contact with other specific individuals are common, legal experts say preventing people from going into entire neighborhoods would be unprecedented. "What we're trying to do is put these drug dealers out of the city of San Antonio," McClendon said. McClendon represents the east side of San Antonio, which includes neighborhoods where drug activity is rampant. Her bill includes exceptions, which would allow otherwise excluded individuals to enter the restricted area to meet with attorneys, comply with court ordered restrictions, or to attend college. "Drug Free Zones" under the measure would have to have a 'significantly higher number of arrests for drug offenses' than other areas of similar population within the city, McClendon said. http://www.woai.com/news/local/story.aspx?content_id=B7FC3BED-0F4B-4FA2-8797-DA94532E6B37
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Comment #5 posted by siege on January 12, 2005 at 16:03:56 PT
Eighth Amendment
cough it be the U.S. Constitution: Eighth Amendment come into play here allso. Eighth Amendment - Further Guarantees in Criminal CasesAmendment Text | Annotations Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
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Comment #4 posted by The GCW on January 12, 2005 at 15:47:40 PT
Judges are not robots.
The Feds. can not dictate what Judges do, to the extent that they have been.At a minimum this ruling means some level of credible drug law reform has just occured. 
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Comment #3 posted by FoM on January 12, 2005 at 15:42:39 PT
Just My Thought on The Ruling
I've been thinking about this ruling and what I believe could happen is it could bottleneck our judicial system with appeals. What choice would they have but to forget about issues that aren't important like Cannabis maybe? 
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Comment #2 posted by FoM on January 12, 2005 at 15:32:25 PT
rchandar 
Yes it could be a good sign but I just don't know what it means. On the news they don't seem to know either so we aren't alone.
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Comment #1 posted by rchandar on January 12, 2005 at 15:14:51 PT:
it could be a good sign...
...at least now judicial discretion will be a stronger component of the "process." That's not bad, but I still doubt the medical ruling will be favorable.kudos, though, to anyone who can prove me wrong.--rchandar
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