Thursday, August 12, 2004

Either/or sentences urged


Supreme Court has yet to clarify decision

By Dan Horn
Enquirer staff writer

A government lawyer offered a novel solution Wednesday to federal judges who are in limbo while waiting for the U.S. Supreme Court to settle a dispute over how they sentence criminals to prison.

He suggested that judges sentence everyone twice: Once under the existing rules, and once with an alternative sentence in case the Supreme Court later throws out the rules.

It's unclear how such a dual-sentencing system would work. But at a hearing in Cincinnati Wednesday, judges on the U.S. 6th Circuit Court of Appeals seemed willing to at least consider the idea.

Steven Lane, a lawyer with the U.S. Department of Justice, made the suggestion while trying to convince the judges to uphold a 20-year sentence imposed on a Kentucky drug dealer.

The sentence is under review because it was based, in part, on evidence that was not presented to a jury.

The case is one of several to arise across the country after a Supreme Court decision in June that found judges in Washington state should not be allowed to impose sentences without input from a jury.

Lane and most federal prosecutors say the decision does not affect the federal court system, even though the system uses sentencing rules similar to those in Washington.

But lawyers for the convicted drug dealer, Robert Koch, say it does.

The Supreme Court will decide who is right in October when it answers the question once and for all. Until then, federal judges must figure out what to do with hundreds of criminals awaiting their sentences.

"It's unfair to defendants to sit around in jail waiting for the Supreme Court to decide," said Koch's lawyer, H. Louis Sirkin.

Lane said his suggestion would allow judges to move cases along despite the confusion.

He said they could sentence criminals under the current rules, with the understanding that the alternative sentence could be imposed later if the rules are declared unconstitutional.

The 6th Circuit is expected to rule soon to provide guidance to judges in its jurisdiction, which covers Ohio, Kentucky, Michigan and Tennessee.




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