By Dan Horn
Enquirer staff writer

A U.S. Supreme Court decision this week calls into question the sentences of thousands of prisoners in Cincinnati and across the country - from drug dealers to gang leaders to white-collar criminals.

The 5-4 ruling overturned the criminal sentencing system in the state of Washington because that system allows judges to increase a defendant's sentence without input from a jury.

Although the decision directly affects only Washington, legal experts in Cincinnati say they expect the impact to be felt everywhere.

Federal courts use a similar sentencing system and many states, including Ohio, allow judges some discretion to make findings that go beyond a jury verdict.

The big question now is whether all of those sentencing systems eventually will be cast aside like the one in Washington or whether the Supreme Court will stop short of such dramatic change in future decisions.

Either way, lower courts will be busy trying to sort out what Thursday's ruling means for thousands of criminal defendants nationwide.

"This could be momentous," said Scott Greenwood, a Cincinnati attorney who works with the American Civil Liberties Union and specializes in constitutional law. "This has the potential to undo 20 years of sentencing reforms."

Many of the reforms were intended to ensure that people convicted of the same crime, under essentially the same circumstances, would be punished in the same way.

In the federal system, judges are required to impose sentences that fall within a minimum and maximum range, depending on the offense.

But it's up to the judges to decide where the defendant falls within that range. Some factors, such as the amount of drugs involved in a crime, could mean more prison time, while other factors, such as cooperation with law enforcement, could mean less.

In the Supreme Court's majority opinion, Justice Antonin Scalia wrote that a similar but less complex system in Washington is unconstitutional because it requires judges to make decisions that should be left to juries.

He said the constitutional guarantee to a trial by jury, which requires proof beyond a reasonable doubt, also should apply to the findings of fact that judges make when imposing a sentence.

"The judge's authority to sentence derives wholly from the jury's verdict," Scalia said.

The dissenting justices, however, said the sentencing guidelines were reasonable and ensured uniformity in the system. Throwing them out, they argued, would effectively jeopardize every criminal sentence in federal court and in state courts with similar systems.

"Today's decision casts constitutional doubt over them all and, in so doing, threatens an untold number of criminal judgments," Justice Sandra Day O'Connor wrote. "(This) court ignores the havoc it is about to wreak on trial courts across the country."

Defense lawyers and prosecutors tend to agree, although they differ on just how much havoc the lower courts might be in for. The federal courts seem most at risk.

"The handwriting is on the wall," Greenwood said. "There's no reason the same standard shouldn't be applied to federal sentencing guidelines."

U.S. Attorney Gregory Lockhart is waiting for Justice Department officials to decide whether the high court's ruling will lead to immediate change. "It could have an impact," Fred Alverson, Lockhart's spokesman, said.

What that means for defendants is unclear. But if the rules change, thousands of prisoners could head back to court for adjustments in their sentences.

Cincinnati lawyer Martin Pinales, who represents several criminal defendants in federal court, said even small changes in the way sentences are calculated could mean years for prisoners.

He said one of his clients saw her minimum sentence rise from 33 months to 63 months because a judge concluded that cash from drugs was a factor in her money-laundering conviction. If the judge is barred from making such a finding, more than two years could come off her sentence.

"This will impact every federal case," said Pinales, who also is vice president of the National Association of Criminal Defense Lawyers.

He's less certain about the impact on Ohio's state courts, which do not have a strict sentencing guideline like the federal system and do not leave as much to the judge's discretion.

For example, Ohio juries decide whether a defendant qualifies for a longer sentence because of gang membership or drug involvement.

"It's not up to the judges to do whatever they want," Hamilton County Prosecutor Mike Allen said. "We've got to prove it to a jury. I don't think (the Supreme Court decision) is going to affect us."

But judges in Ohio do make some discretionary decisions at sentencing. They decide whether the defendant committed the worst form of the offense or whether he is a risk to repeat.

And those factors affect the length of the prison sentence.

Judge Mark Painter, who serves on the Ohio 1st District Court of Appeals, said he expects that his court and other state appeals courts will see plenty of challenges to sentencing rules in the coming weeks and months.

"Anyone challenging a sentence will raise this issue. We're going to have a busy couple of weeks."

Conservatives, liberals link up in decision

The U.S. Supreme Court split 5-4 this week in its decision to throw out criminal sentencing rules in the state of Washington. But the divide this time was based more on philosophical differences on the role of judges and juries, rather than on the partisan differences that have split the court in the past.

The resulting decision teamed some of the most liberal justices on the court, such as Ruth Bader Ginsburg, with some of the most conservative, such as Antonin Scalia. Here's how they voted:

The majority: Scalia, Ginsburg, John Paul Stevens, David H. Souter and Clarence Thomas.

The minority: Sandra Day O'Connor, Anthony Kennedy, Stephen Breyer and Chief Justice William Rehnquist.

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Sharon Coolidge of the Enquirer contributed to this report. E-mail dhorn@enquirer.com