On Oct. 4, 2004, the cases of the United States v. Booker and United States v. Fanfan, both of which many thought would decide the ultimate fate of the Federal Sentencing Guidelines were argued before the United States Supreme Court. On Jan. 12 the Supreme Court rendered decisions in each of those cases. The astounding decisions rendered by the Court guarantee that the issue of the Federal Sentencing Guidelines is not dead, but will be redefined by the Federal Appellate Courts and ultimately the Supreme Court again in future years.

The unusual joint decision contained two 5-4 majority opinions. The Part I majority decision authored by Justice Stevens, who was joined by Justices Scalia, Souter, Thomas and Ginsburg, held that the Federal Sentencing Guidelines violate a defendant's right to trial by jury by providing a scheme in which judges could make preponderance of the evidence factual findings that would increase sentences beyond what the jury had found in their verdict. The opinion thus declared unconstitutional the mandatory aspect of the Federal Sentencing Guidelines. It was thought by many before the decision was rendered that if the Court went in that direction, the Guidelines in their entirety would fall since it would be difficult to sever and save other portions of the Sentencing Act.

Part II of the opinion, however, provided a surprise solution. That opinion authored by Justice Breyer (one of the original authors of the Sentencing Guidelines), provided that the defendant's rights could still be protected if the Guidelines now became advisory rather than mandatory. The swing vote in the solution issued by the Part II Judges was Justice Ginsburg who ruled with a majority in each decision. Apparently, she felt that there were Sixth Amendment Constitutional problems with the mandatory nature of the Guidelines, but did not feel it necessary to scrap them in their entirety. Under Part II of the decision, Judges must now consult the Guidelines with Congress' intent in mind, namely the elimination of disparate sentences, and fashion a sentence based upon advisory rather than mandatory guidelines. Theoretically then, Judges would not be bound by the mandatory nature of the Guidelines, but would be free to fashion a sentence which in their discretion provided justice. They now can consider factors previously not allowed to be considered under the Guidelines, i.e. age, family matters, defendant's character and other relevant offender characteristics and background experiences. The decisions brought the defendant as a person back into the sentencing equation.

The kicker, however, is that the Judges' decisions could be reviewed by the Appellate Courts on a newly established standard of "reasonableness". Nowhere in the decision is that term defined. However, it will surely be defined by Federal Appellate Courts throughout the Country and ultimately again by the Supreme Court. Theoretically, the same struggle over the Guidelines will be fought again. Lurking in the background, however, are the possible resignations of several Justices and new appointments, presumably conservative in nature, and Congress' promise that they would, again, revisit the issue of Federal Sentencing which does not bode well for defendants and defense attorneys.

Another interesting aspect of the decision is that it is unclear how this will effect those defendants who were sentenced to incarceration on improper, unconstitutional grounds before the Blakeley, Booker and Fanfan decisions. That issue was probably not preserved in their criminal cases and it is still to be determined whether Habeas Petitions to the Federal Courts will be looked upon favorably. It is my opinion that they will not be since that avenue would open a floodgate of appeals from thousands and thousands of already sentenced defendants. As it is, there will be a floodgate of litigation from persons who preserved the issue or had not had an ultimate sentence determined at the time of the decision in Booker and Fanfan.

What does this mean?

This means that as defense attorneys, we popped open a bottle of champagne when we heard the first news reports of the Booker and Fanfan decisions, but did not really enjoy drinking it since there were troubling aspects of the decision, namely the lingering advisory nature of the Guidelines and the prospect of having Judges second- guessed on a "reasonableness" basis by the Appellate Courts.

I am heartened by the decision, even though it did not go as far as I had hoped, because it did return to Judges a great deal of discretion. I personally feel that part of the Supreme Court's dislike of the Federal Sentencing Guidelines was the fact that the dignity of the Federal Judiciary had been demeaned by having Judges become mere bean counters in a sentencing scheme which often required them to sentence defendants to terms of incarceration which they felt were either draconian, unfair or unwarranted.

As the law in this area unfolds, we will be moving toward an ultimate resolution of the philosophical issue of whether unwarranted disparity should be replaced by unwarranted uniformity. It is my feeling that it is no better to have a system which provides for unfair uniform sentences than it is to have a system which provides for unfair disparate sentences. It is my experience that Federal Judges are intelligent, intuitive and mindful of the proper role of incarceration in society. They should be given unfettered discretion except for mandatory minimums and statutory requirements. I practiced for many years before the advent of the Sentencing Guidelines 21 years ago and can state, without qualification, that the system, Pre-Guidelines, was much fairer to defendants and society in general.

I would be happy to discuss this issue or any other issues involved in the Sentencing Guidelines with any readers. I can be reached at 795-1080 or 932-2225 or you may e-mail me at bob@mkbd.com.