The Telegraph – Sat Jan 15, 2005, by Andrew Wolfe, Judge ...



QUOTES FROM JUDGES

The Journal Star, Jan. 13, 2005, By Andy Kravetz, Supreme Court says judges not bound by sentencing guidelines

"What this case does basically is gut the very purpose of the guidelines in the first place," he said.

Mihm, who was on the federal bench before the guidelines were implemented, said he is not satisfied, from an institutional level, that judges need this much discretion on a sentence. On a personal level, however, he's pleased that he has more say over a sentence.

"I now don't have to go home on a Friday saying, 'I wish I didn't have to give out a 160-month sentence when I thought only 100 months was enough,'" the judge said.

But Mihm, Miller and Parsons all believe Wednesday's decision isn't the end of the debate.

"Based upon all the reasons that led up to the (guidelines being implemented), I am absolutely certain this is not end of this," Mihm said.

The State, Jan. 13, 2005, By Gina Holland, Judges Deal With Sentencing Rules Fallout

U.S. District Judge Charles Kornmann of South Dakota said Thursday that judges' cheer in the new sentencing freedom is tempered with some concern about what will happen in Washington.

"I think that Congress should give it a chance. If it doesn't work, if they find that judges are going off the map, then they can always revisit it," Kornmann said.

Like other federal judges, Kornmann said he was prepared for an increase in claims that inmates were wrongly sentenced.

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“There's going to be a beehive of activity in both the Bureau of Prisons and the judiciary," said Frederic Smalkin, a senior federal judge who teaches law at the University of Maryland

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The Sentencing Commission, a federal panel that sets the guidelines, was meeting Friday to consider the fallout, said U.S. District Judge Ricardo Hinojosa of Texas, the commission chairman.

The Los Angeles Times, Jan. 13, 2005, By Henry Weinstein and David Rosenzweig, How Judges Will Use Discretion Is the Big Question: Analysis predict most jurists will be cautious before departing from sentencing guidelines.

Dickran Tevrizian, a U.S. District Court judge in Los Angeles who was appointed by President Reagan, applauded the development. "We're back to square one," Tevrizian said. The ruling gives judges the discretion to sentence the individual and not just the crime, he said.

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While welcoming the decision, U.S. District Judge David O. Carter, who is based in Santa Ana, expressed concern that the ruling might trigger many more appeals.

"Uniformity under the sentencing guidelines was a shield for defendants who deserved harsher sentences and a sword that struck down rehabilitation for those who deserved leniency," Carter said. "This decision lets the judge sentence fairly. Experience shows that uniformity was a bad proxy for justice."

The Baltimore Sun, Jan. 13, 2005, By Stephanie Hanes, High court upsets rule on sentencing: Evidence that affects term must be presented to jury; Federal guidelines debated; Decision might open door to rollback of sentences

"We all need time to read and reflect on the full opinion," said Maryland U.S. District Judge Catherine C. Blake. "It appears, however, that the Supreme Court has left in place a system that will truly guide a judge's discretion at sentencing without mandating what might in an individual case be an unjust result."

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"I hope Congress will not act precipitously in an effort to curtail judicial discretion and instead will direct the U.S. Sentencing Commission to monitor and report on judges' sentencing decisions over the next year or two," said Maryland U.S. Magistrate Judge James K. Bredar. "Americans can and should watch their courts closely - if they do they'll see that federal judges, acting in this new era of advisory and non-mandatory guidelines, will sentence intelligently and responsibly, and in a manner that justifies the trust placed in them by the community."

The Denver Post, Jan. 13, 2005, By Alicia Caldwell, Justices: “Mandatory guidelines” unconstitutional

In Denver, Senior U.S. District Judge John Kane called it a watershed decision that restores sentencing to a judicial act rather than the clerical act it has become.

"I think it's a very positive thing because it puts the decisionmaking responsibility on the person who is supposed to be making the decision, and that is the judge," Kane said.

On their face, "mandatory guidelines" are an oxymoron that "only someone in Washington could dream up," Kane said.

The Salt Lake Tribune, Jan. 13, 2005, By Pamela Manson, Sentencing guidelines eased by high court: Mandate deleted: Utah’s senior U.S. judge praises the decision, calling it long overdue; the effect on current cases is unknown.

 "It comes down to doing what should have been done 20 years ago," said Senior U.S. District Judge Bruce Jenkins, who presides in Salt Lake City and has long argued for more flexibility in dispensing justice finally restores balance to the whole process, which has been out of whack for a long time," Jenkins said of Wednesday's ruling. "It provides truth to the suggestion that they are guidelines."

The Chicago Sun Times, Jan. 13, 2005, By Natasha Korecki and Abdon Pallasch, Court gives judges last word on sentences

"There are some judges who will look at this and say: 'This is Nirvana,' " U.S. Judge Ruben Castillo said. "I think Congress will be looking for any judges who will be doing anything unusual."

But Castillo, who sits on the U.S. sentencing commission, warned things may again change. "This is not the last word. Congress will have the last word," he said.

The Courier-Journal, Jan. 13, 2005, By Deborah Yetter, Mandatory sentencing rules eased: Justices’ decision will fuel appeals

Yesterday, U.S. District Judge Edward H. Johnstone of Paducah said he was pleased with the decision because it restores broad power to judges.

"As an old judge, I like it,'' said Johnstone, 82. "I think it restores to the trial judge some of the discretion the guidelines took away."

The Detroit Free Press, Jan 13, 2005, By Gina Holland, Judges Deal With Sentencing Rules Fallout

U.S. District Judge Charles Kornmann of South Dakota said Thursday that judges' cheer in the new sentencing freedom is tempered with some concern about what will happen in Washington.

I think that Congress should give it a chance. If it doesn't work, if they find that judges are going off the map, then they can always revisit it," Kornmann said.

Like other federal judges, Kornmann said he was prepared for an increase in claims that inmates were wrongly sentenced.

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"There's going to be a beehive of activity in both the Bureau of Prisons and the judiciary," said Frederic Smalkin, a senior federal judge who teaches law at the University of Maryland

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The Sentencing Commission, a federal panel that sets the guidelines, was meeting Friday to consider the fallout, said U.S. District Judge Ricardo Hinojosa of Texas, the commission chairman.

Justice John Paul Stevens had said the change "sends every federal sentence back to the drawing board." And Justice Antonin Scalia predicted it would "wreak havoc" on courts.

"That concern is probably shared by more than just justices on the court," said Hinojosa.

The New York Times, Jan. 13, 2005, By Carl Hulse and Adam Liptak, New Fight Over Controlling Punishments Is Widely Seen

"I'm really elated, and I think most judges will be, too," Judge Jack B. Weinstein of Federal District Court in Brooklyn said. "It gives us the discretion to deal with individual cases without being unnecessarily harsh. This is now, if Congress leaves it, a marvelous system."

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"I personally will try to be completely faithful to the opinion," said Chief Judge William G. Young of Federal District Court in Boston. "Which means I will consider the advice of the guidelines and consider it seriously."

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John S. Martin Jr., a federal judge in New York who resigned in 2003 over what he called "a sentencing system that is unnecessarily cruel and rigid," reacted with something like glee.

"This is an ideal sentencing system," Mr. Martin said, "with guidelines that are advisory, with appropriate review."

The Boston Globe, Jan. 13, 2005, By Shelley Murphy, 2 Boston jurists hail return of discretion

Chief US District Judge William G. Young, who ruled last year that the guidelines were unconstitutional, said that yesterday's decision will force prosecutors to prove the elements of a case to a jury or get a defendant to admit to them as part of a plea bargain.

"What this does is resuscitate the jury," he said. "It places a jury of the people at the center of the determinations which go into sentencing . . . and that's where it should be."

Young said he expects the court will receive an influx of petitions from prisoners seeking to have their sentences reduced. He said he's not sure how the court will handle them since yesterday's ruling. Young said he rejected all 15 requests by prisoners to have their sentences vacated that were filed before him after the Supreme Court's ruling last June in the Washington case.

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US District Judge Nancy Gertner said she was pleased by yesterday's high-court ruling because she had issued an order that mirrored it last July, concluding that the guidelines should be treated only as advisory.

"So many times we have found ourselves in a situation where the guideline sentence made no sense in light of the facts," she said. A major effect of the Supreme Court's ruling, she said, is that judges may now consider individual characteristics of a defendant -- a health condition, for example.

"People are not from cookie cutters; cases aren't made out of the same mold," said Gertner, adding that judges will now be able to consider the guidelines but not be mandated to follow them if they don't make sense in a case. "It means we will be reasonable, which is what they put us on the bench for."

The Detroit Free Press, Jan. 13, 2005, by the Associated Press, Supreme Court ruling delays Ann Arbor case: Justices’ decision throws out federal sentencing guidelines

In Detroit, U.S. District Chief Judge Bernard Friedman said he expects the Federal Judicial Center that provides administrative guidance to federal courts will be convening teleconferences within the next few weeks. "Right now, we are not sure what the impact is going to be in District Court," Friedman said.

The Pittsburgh Post-Gazette, Jan. 13, 2005, by Torsten Ove, Jurists here reacting favorably

"I'm very pleased to see that the court ruled in the way it has, as I expected it would," said former U.S. District Judge Robert Cindrich, a frequent critic of sentencing guidelines. "I can only hope that the Congress will take a serious look at the sentencing laws as the court has suggested and that the future sentencing laws will be more of reason and sensibility than has been demonstrated in the past."

The Chicago Tribune, Jan. 13, 2005, By Jan Crawford Greenburg, High court loosens criminal sentencing guidelines

After news of the ruling, U.S. District Judge Robert Lasnik huddled with his fellow federal judges in Seattle. Afterward, he described the decision as "good news" and said "the end result is that judges will have more discretion than they have had."

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Chicago's U.S. District Chief Judge Charles Kocoras said it was too early to predict the ramifications of the decision.

"We need to look at it carefully," he said. "An early guess is there may be an increase in appeals."

The Tribune-Herald, Jan. 13, 2005, By Cindy v. Culp and Tommy Witherspoon, Area well poised in wake of Supreme Court sentencing decision

U.S. District Judge Walter S. Smith Jr., who presides over Waco's federal court and is chief judge for the Western District of Texas, said he wasn't surprised by the ruling. After all, Smith issued a ruling of his own in July saying the sentencing guidelines were not constitutional and violated defendants' Sixth Amendment right to a jury trial.

Smith said he was pleased with the decision because it will give federal judges more discretion in sentencing. He said he doesn't mind having the guidelines as an advisory system. He just didn't like being bound by them.

However, Smith said the ruling will prove a nightmare for law enforcement officials in some parts of the nation. Thousands of cases could be affected, he said.

Whatever the fallout, Smith said he doesn't believe Wednesday's ruling will be the last word on the subject, an observation echoed on the Supreme Court. Congress will likely set higher mandatory minimums for many crimes, again taking away judges' discretion, he said

Deseret Morning News, Jan. 14, 2005, By Angie Welling, Judge to use guidelines: They are still worthwhile despite top court decision, Cassell says

"The congressional view of how to structure that sentencing system will surely be informed by how judges respond to their newly granted freedom under the 'advisory' guidelines system," Cassell said. "If that discretion is exercised responsibly, Congress may be inclined to give judges greater flexibility under a new sentencing system.

      "On the other hand, if that discretion is abused by sentences that thwart congressional objectives, Congress has ample power to respond with mandatory minimum sentences and the like."

The Star Tribune, Jan. 14, 2005, By Margaret Zack, Minnesota’s top federal judge looks at ruling on sentencing

Chief U.S. District Judge James Rosenbaum:

Judge Rosenbaum said Thursday the approach now to be taken in sentencing maintains a strong connection between an offender's conduct and the sentence.

Q How many cases do you anticipate will come back for resentencing?

A: I don't know if there'll be any, but there may be a large number. It's not clear if the opinion is retroactive. If it is, there could be a very large number. They made it clear in ... that all cases presently on direct appeal, those who have been sentenced or found guilty and haven't yet gone through the full appellate process, this opinion will apply. Whether it will be retroactive beyond that no one knows.

A court is either going to decide it is retroactive or not and that's appealable. The Supreme Court may decide to take that up.

Q Does the fact that it was such a lengthy decision with multiple and different alliances on the court have any impact on the ruling?

A: Sometimes lawyers will say to me, "This was only a 5-4 decision." I point out to them that Miranda was 5-4 and to my knowledge it's the law. So the answer is no.

It's very closely reasoned. They worked very carefully to craft an opinion. The rulings are generally clear so we can do our work. The ruling is that sentencing guidelines will now have to be consulted. They are no longer mandatory, and that standard of appellate review will be ... whether the judge's decision was reasonable.

The other approach we now adopt maintains a strong connection between an offender's real conduct and the sentence.

That's important to increased uniformity of sentencings that Congress intended guidelines to achieve.

Q Do you agree with Justice Antonin Scalia that the decision could create havoc in the federal courts?

A: Justice Scalia was writing persuasively as he frequently does. You may recall last spring when Blakely [another sentencing decision] came out, the headlines talked about havoc and chaos. Did you see any? Judges will work as hard as they can to do the best they can to follow the law as they know it.

Q Does this decision give federal judges more power in sentencing?

A: In a real sense, I don't think it does.

The guidelines considerations were really considerations people always used. But when they become mandatory, it objectified them.

Anyone who sentenced a bank robber would consider whether there was a threat, whether they used a gun, whether the gun was brandished, whether the gun was fired, whether someone was hit with a bullet. You'd expect the sentences would vary from one to another depending on that.

The Supreme Court said the mandatory nature does not square with the law. But does it give judges more power? Judges always consider the various factors under any system.

Q What are the benefits or problems with giving judges more discretion in sentencing?

A: I think there's a strong policy in favor of making the same crime subject to the same punishment. The same way the guidelines attempt to quantify all those factors I said about the bank robbery, you have to look at the other factors, the person's criminal record, whether or not they were under some kind of duress or forced to do things, those kind of modifications are involved. The sentencing guidelines goal is to eliminated unwarranted disparities in sentencings.

The Birmingham News, Jan. 14, 2005, By Val Walton, Sentencing ruling could prompt more appeals

U.S. District Judge U.W. Clemon, chief judge for northern Alabama, said the high court's ruling restores to judges some, if not all, traditional authority. "It has a tremendous impact," he said, because it allows judges to hand down justice they think is appropriate in each case.

The Pioneer Press, Jan. 14, 2005, By Ruben Rosario, Court deepens sentencing doubts

James Rosenbaum, the chief federal judge in Minnesota and a long-time critic of mandatory minimum drug laws and the restrictiveness of the guidelines structure, declined to go into details about his reaction to the court's ruling.

"All I can say at this time is that it has put the word 'guideline' back into the guidelines,'' Rosenbaum said

The Telegraph, Sat Jan 15, 2005, by Andrew Wolfe, Judge Applauds Sentencing Ruling

Judge William Young, chief justice of the U.S. District Court in Massachusetts:

“What this does is make truthful the rhetoric that’s being used. It renders the guidelines guidelines, instead of a constricting, mandatory framework that really allows the prosecutor to determine sentences,” Young said.

“We say they were guidelines, but they weren’t guidelines at all,” Young said.

“I’m much in favor of it,” he said of the decision. “I emphatically believe it accurately describes the requirements of the Sixth Amendment of the U.S. Constitution . . . that it is a jury of the people that stands between the prosecutor and the jailhouse door.”

“People who predict chaos . . . are just wrong,” Young said.

“The day the opinion came out, that afternoon, I sentenced someone. It’s effective immediately,” Young said. “On that particular case, it had no effect.”

The Times-Picayune, Sat, January 15, 2005, By Gwen Filosa, Ruling lets local judges get tough on corruption Supreme Court eases rein on sentencing

U.S. District Judge Martin L.C. Feldman:

"The guidelines helped see to it that federal judges treated white-collar crooks the same as other crooks," said Feldman, appointed to the bench 21 years ago by President Reagan. "I thought white-collar crooks should go to jail just like the drug dealers. I never felt the guidelines were cramping my style as a sentencing judge."

The State, Sat. Jan. 15, 2005, By J.R. Gonzales, Lifting of sentencing constraints causes stir: S.C. court officials, inmates ponder impact of ruling that unties juries’ hands.

Judge William W. Wilkins, Chief Judge of the Fourth Circuit Court of Appeals:

But instead of scrapping it, the court, in a separate decision, allowed the guidelines to be used in an advisory manner so that federal district judges can hand down reasonable sentences.

“What is the definition of ‘unreasonable’?” said William W. Wilkins, chief judge of the Fourth Circuit Court of Appeals.

The rules will continue to play a role in the sentencing process, he said.

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Chief U.S. District Judge Joseph Anderson:

Chief U.S. District Judge Joseph Anderson liked the guidelines.

“I’m in a distinct minority among the federal judges,” Anderson said.

His concern was whether Wednesday’s decision would apply to all those serving their sentences in federal prison.

“It’ll take another case to go before the Supreme Court,” he said.

The Fresno Bee, Sat. Jan. 15, 2005, By Jerry Bier, Ruling may impact porn case

U.S. District Judge Oliver W. Wanger:

"The judge is left to sentence based on what is believed to be reasonable," Wanger said.

He added, "We know we are going to get a response from Congress, and I suspect we're going to get it sooner than later."

The Forum of Fargo, Sat. Jan 15, 2005, By Jeff Zent, Ruling has F-M law field buzzing

U.S. District Judge Rodney Webb, an outspoken critic of sentencing guidelines, is pleased with the high court’s ruling.

“The discretion of the court will mean something again,” Webb said.

“The guidelines didn’t allow judges to consider exceptional circumstances,” he said. “It’s always been frustrating to me.”

Webb said he will refer to the guideline manual, and expects the vast majority of his sentences to remain within the guideline ranges.

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Bismarck-based U.S. District Judge Dan Hovland said he expects a “significant amount of litigation” in the wake of the Supreme Court decision.

The ruling could lead to new sentencing hearings in North Dakota, and possibly some new trials, said Hovland, the state’s chief U.S. district judge.

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