By Dan Horn
Enquirer staff writer
Justice Sandra Day O'Connor warned last month that the U.S. Supreme Court's decision to throw out a sentencing law in Washington state could cause "havoc" in the nation's legal system.
She may have understated the problem.
The latest jolt came Wednesday when the U.S. 6th Circuit Court of Appeals in Cincinnati ruled that the Supreme Court's decision invalidated the way drug dealers, white-collar criminals and thousands of others have been sentenced in the past 20 years.
The decision has only added to the confusion that has bogged down the federal courts' criminal system.
In the past few weeks, federal courts in Cincinnati and around the country have been thrown into chaos. Criminal cases have been put on hold. Prosecutors and defense lawyers have sparred over what to do next. And sentencing hearings for more than 100 convicted felons in Southern Ohio have been canceled.
"The chaos may be short-lived," said U.S. District Judge Sandra Beckwith. "But it is definitely here right now."
The cause of the turmoil is the Supreme Court's 5-4 ruling in Blakely v. Washington, which threw out a state law that allowed judges to increase a defendant's sentence without input from a jury.
Although the decision directly affects only Washington state, its impact is rippling through other courts that use sentencing guidelines like Washington's.No courts have been hit harder than those in the federal system.
Guidelines allow judges to impose a sentence based on evidence that may not have been presented to a jury. Some factors, such as the amount of drugs involved in a crime, could mean more prison time.
The Supreme Court found that such a system violates the constitutional right to a jury trial because it gives judges too much power. O'Connor disagreed, arguing that the system ensured similar sentences for similar offenses.
She also said the ruling jeopardized "tens of thousands of criminal judgments."
Federal judges in Southern Ohio were so worried about the impact of the decision that they declared a 30-day moratorium last week on all sentences that could be affected by the Blakely decision. Court officials say at least 100 cases have been put on hold.
"There's just a lot of confusion because no one really knows what the impact will be," said Jim Higgins, executive of the 6th Circuit. "Clearly, people are searching for answers."
The consensus among judges is that it makes little sense to impose sentences now if it appears the appeals courts - or the Supreme Court - will reverse them later because of Blakely.
"Obviously, if a defendant wants to argue that Blakely applies, we have to step back and take notice," Beckwith said. "It's on everyone's mind."
The 6th Circuit, which covers Ohio, Michigan, Kentucky and Tennessee, weighed in Wednesday when it threw out the sentence of a Memphis woman in a fraud case. The court found that, because of Blakely, judges no longer are required to impose sentences based on the federal sentencing guidelines.
Instead, the court ruled, the guidelines are merely recommendations a judge can accept or ignore. Other appeals courts may disagree, and the Supreme Court may ultimately have to intervene.
"There's a whole slew of issues that have to be sorted out," said Kelly Johnson, an assistant public defender in Cincinnati. "Until it actually gets to the U.S. Supreme Court and we get a definitive statement, we're not going to know."
One big question is whether Blakely could be applied retroactively to thousands of sentences already imposed on federal prisoners. Another question is whether federal trials might have to be split into two phases: one for determining guilt, another for the jury to determine a sentencing range.
Since it could take months or years to clear up those issues, judges and lawyers are considering other, short-term options.
Those could include requiring prosecutors and defense lawyers to agree on a specific sentence in all plea bargains, rather than leaving the sentence to a judge. The judge would then either accept or reject the sentence, but not alter it.
U.S. Attorney Greg Lockhart believes Blakely does not apply to the federal system. But he and other federal prosecutors are making changes anyway.
The most noticeable change is in the way they handle grand jury indictments, which list the charges against suspected criminals.
Lockhart has begun including specific drug amounts and other details in indictments that previously were discussed only at sentencing, when a judge would use the information to determine the length of a prison term.
The hope is that by making those details part of the proceedings earlier, they would be considered by a jury. That, in turn, would allow a judge to consider them at sentencing.
"It's a change," said Lockhart's spokesman, Fred Alverson. "It's an example of the precautions we're taking just in case someone decides the federal guidelines should be affected."
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