Decision delayed

A U.S. Supreme Court decision
affecting how criminals are sentenced
is causing confusion and delays
in Hawaii's federal district court

A U.S. Supreme Court ruling that shattered Washington state's criminal sentencing system has put some cases on hold in Hawaii's U.S. District Court and threatens to dismantle federal sentencing guidelines in practice for the past 17 years.

The high court ruled in June that certain aggravating factors in cases that previously allowed judges to hand down longer sentences, instead must be decided at trial by jurors beyond a reasonable doubt.

"It's caused a tremendous amount of confusion and disruption in terms of how attorneys prepare," said U.S. Chief District Judge David Ezra. Prosecuting and defense attorneys have delayed sentencing in some federal cases while waiting for the nation's highest court to clarify its position.

In Hawaii's lower courts, city prosecutors and the state public defender say the federal ruling should have little if any effect on state cases in Hawaii because of similar rulings in the past by the state Supreme Court.

In a 5-4 decision, the nation's highest court ruled on June 24 that Washington state's sentencing guidelines violated a defendant's Sixth Amendment right to a trial by jury because they allowed a judge, instead of a jury, to consider factors that increased the defendant's maximum sentence.

Judge's decision was within her power An Aug. 4 editorial in the Star-Bulletin erroneously concluded that Circuit Judge Karen Ahn's sentence of convicted murderer Shane Mark was flawed. While the judge remarked that Mark was a danger to society, she based his enhanced sentence of life imprisonment without the possibility of parole on his multiple prior convictions and the multiple felonies included in his conviction. Those judicial assessments are permitted under the Supreme Court's ruling in the Blakely case.

The court overturned a lengthened -- enhanced -- prison term of Ralph Howard Blakely, who had pleaded guilty to kidnapping his estranged wife. A Washington judge had increased Blakely's maximum sentence to 90 months in prison, from a range of 49 to 53 months provided under the state's sentencing law. The judge had lengthened the maximum sentence on the basis that Blakely had acted with "deliberate cruelty," a conclusion not conceded in Blakely's guilty plea.

The Supreme Court ruled that a judge could impose an increased sentence because of prior convictions -- which might have been kept from the jury because of prejudicial influences -- but not for other "aggravating" factors absent from the jury's verdict.

A month later, the 9th U.S. Circuit Court of Appeals applied the ruling to federal courts in Hawaii and eight other states under its jurisdiction. In that case, a federal judge had sentenced Alfred Ameline, a Montana man, to 121/2 years in prison after concluding that he had tried to distribute 31/2 pounds of drugs and possessed a gun, findings disputed by Ameline. Under federal guidelines, Ameline faced up to 16 months in prison if no amount of drugs had been specified.

The 9th Circuit panel found "no principled distinction" between the Washington state system and the federal guidelines. As a result, federal judges throughout the circuit were put on notice that they no longer could lengthen sentences on the basis of conclusions that had not been arrived at, beyond a reasonable doubt, by a jury or trial judge.

In the Blakely decision, Justice Antonin Scalia wrote for the majority that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment." Justice Sandra Day O'Connor, who dissented, told a group of federal judges in July that the decision "looks like a No. 10 earthquake to me."

Assistant U.S. Attorney Elliot Enoki agreed that the rulings, if they stand, could have a "dramatic" effect on how his office in Hawaii conducts its business, preparing sentencing-related material for juries to decide.

The rulings affect "lots and lots of cases" in Hawaii, said federal Public Defender Peter Wolff. "I would say more than half of the average cases have the potential of being impacted by it."

In some cases, Wolff said, prosecuting and defense attorneys are delaying sentence hearings. "In other cases," he said, "if there aren't any issues that appear to be impacted by the Blakely case, they're going ahead."

Responding to extreme anxiety by federal prosecutors and judges, the Supreme Court has agreed to conduct a hearing on Oct. 4, the opening day of its new term, to review two appeals by the Justice Department. The review will focus on whether the Blakely decision applies to federal guidelines and, if so, whether the entire guideline system created by Congress in 1984, taking effect three years later, is unconstitutional. The Justice Department contends that the system should be abandoned altogether if enhanced sentences are stripped away.

"It may be that what the 9th Circuit has suggested we do in terms of procedure (in the Ameline case) will eventually end up being the procedure that will be followed countrywide," Ezra said, "but then again it could be something entirely different.

"So it's injected a tremendous amount of uncertainty for everyone involved," he added, "as defense lawyers are trying to figure out exactly what kind of sentences their clients will face, whether to accept plea agreements offered by the government, how to deal with objections to the court, whether to request evidentiary hearings -- all of these things are up in the air.

"We also face the potential of having to re-sentence a number of defendants who were sentenced under the previous sentencing scheme if the Supreme Court ultimately decides that Blakely requires that."

Most of the cases affected by the Blakely ruling are drug cases, according to Ezra and attorneys. A jury commonly is called upon in such cases to determine whether a defendant was guilty of participation in a drug conspiracy. After a guilty verdict is handed down, a judge normally decides by a preponderance of the evidence -- more likely than not -- the quantity of drugs involved, to determine whether the defendant should received a lengthened sentence.

Following the Blakely standard, Ezra said, "You have to present that to the jury and have the jury find that beyond a reasonable doubt, because that enhances the sentence."

The Blakely ruling also could affect civil fraud cases, such as insider-trading cases, where juries have decided guilt and judges have decided the amount of money involved in the illegal conduct. Under Blakely, the jury must be asked to determine the amount.

"In a securities fraud case," Ezra said, "where you really have public trading and you had judges who were allowed to make reasonable estimates based on a lot of factors, you would then have to make the government prove that beyond a reasonable doubt. The government is not too happy about having to do that because it's exceptionally difficult to marshall that kind of evidence."

Sentencing systems in 13 states "appear to be fundamentally affected by the Blakely decision," according to an Aug. 6 report from the Vera Institute of Justice, a New York-based organization that studies crime-related issues. However, Hawaii is not among those states because it has long recognized the need to put sentencing-related questions before the jury.

"Hawaii was actually in the forefront on this whole issue, and it's the U.S. Supreme Court that is finally catching up with the law that's existed in Hawaii for the past 15 years," said city Deputy Prosecutor Chris Van Marter said.

Hawaii's Supreme Court has long required the prosecution to prove such sentence-related facts to a jury, agreed state Public Defender Jack Tonaki. "And now, because of the stance it's taken for many years now, Hawaii stands in a good position in terms of conforming with Blakely. Very little adjustment has to be made."

Jon Wool, co-author of the Vera Institute report, said the Blakely decision does nullify a Hawaii law that allows a judge to double the maximum prison sentences for Class C felonies from five to 10 years, Class B felonies from 10 to 20 years and Class A felonies from 20 years to an indeterminate life term, in cases where the judge determines that the defendant is "a dangerous person whose imprisonment for an extended term is necessary for protection of the public." Instead, such an assessment must be decided by a jury.

The same provision allows a judge to increase the prison term of a person convicted of second-degree murder from a life term with parole to a life term without parole. "It's an open question whether that violates Blakely," Wool said, because a prosecutor may argue that the maximum term -- life imprisonment -- is not increased.

However, a person deemed dangerous usually has prior convictions or has been found guilty of numerous felonies, so there is no need to employ the "dangerous person" assessment, Van Marter said. Up to 70 percent of Hawaii's convictions result in enhanced sentences based on at least two prior convictions or at least two felonies involved in the current case, he said.

Another Hawaii provision nullified by Blakely allows a judge to sentence a person convicted of murder to a life prison term without parole instead of with parole because of the crime's "heinous, atrocious or cruel" nature.

However, Van Marter says that issue already has been put before juries, instead of the sentencing judge, when appropriate.