Ruling rattles
federal courts

Isle legal experts say the tougher
standard for increasing sentences
will have wide-ranging effects, but they
are not yet sure what those will be

A U.S. Supreme Court ruling tossing out portions of federal sentencing guidelines that have been in place for nearly two decades likely will affect hundreds of cases pending in District Court in Hawaii, observers say.

The nation's highest court ruled yesterday that the portion of the guidelines system that allows federal judges to increase a defendant's sentence based on factors not found by a jury is unconstitutional.

While the court stopped short of tossing out the sentencing guidelines, it said judges can use them only as an advisory.

The guidelines were established by Congress in 1984 and went into effect three years later. They were intended to ensure consistency in sentencing across the federal courts.

Yesterday's ruling is effective immediately and appears to apply only to pending federal cases in which defendants are awaiting sentencing, or cases that are on direct review by the appellate courts, not those that have already been decided.

Chief U.S. District Judge David Ezra said the decision gives federal judges greater latitude in sentencing defendants based on the actual offense and the person's individual history. While judges will still have to consider the guidelines, they will not be bound by them.

"It means the courts will be freer now to impose a sentence that is most commensurate with the actual offense of conviction," Ezra said. In some cases the federal guidelines have led to prison sentences that were longer or shorter than the defendant deserved, Ezra said.

"It's going to affect every federal case in some form or another," said defense attorney William Harrison, who represents former state Rep. Nathan Suzuki, who is awaiting sentencing in a tax case.

Based on the ruling, factors that increase a sentence in any way must be found by a jury beyond a reasonable doubt, and not at sentencing based on a preponderance of evidence -- a lesser standard than required by the Sixth Amendment right to a jury trial, Harrison said.

Only time will tell how judges will deal with this discretion that they did not have before, said federal public defender Peter Wolff.

"There's been a big change in the law, so I don't know if we'll see much of a difference right away," he said. "And the courts will be moving slowly on what they're going to do, so there may not be much of a change."

Defendants will be sentenced probably in the same time frame as they were previously, he said. But there is a fairly significant number of cases that are backlogged because of the uncertainty -- "probably half the cases that would have been sentenced in the period between June and now."

Wolff said his office intends to ask the courts to exercise their discretion and sentence defendants in a way different from what the guidelines dictate.

The U.S. Attorney's office has said previously that the high court's decision could have a "dramatic" effect on how federal prosecutors prepare sentencing material for juries. Indictments that are being filed are now including sentencing-related facts, such as the specific amount of drugs involved -- facts that juries now need to decide.

The federal sentencing guidelines -- which have helped drive crime rates to 30-year lows -- remain a "critical part of the process to achieve justice," said Assistant U.S. Attorney General Christopher Wray. "To the extent the guidelines are now advisory, however, the risk increases that sentences across the country will become wildly inconsistent."

The Justice Department will continue to urge the courts to apply the guidelines when sentencing defendants to ensure that similar defendants who commit similar crimes will receive similar sentences, he said.

Opinions differ on whether the ruling affects state cases as well.

State public defender Jack Tonaki does not see that happening, because the state has indeterminate sentencing, in which the courts impose the maximum terms provided by statute and the paroling authority decides exactly how long the defendant must serve.

Harrison said yesterday's ruling validates a recent decision by U.S. District Judge Susan Mollway that an extended sentence imposed by a state judge for convicted felon Wayman Kaua violated his federal constitutional rights.

But a subsequent ruling by the Hawaii Supreme Court upheld an extended term for state inmate Larry Rivera, choosing not to follow Mollway's reasoning, Tonaki said.

"Whether the U.S. Supreme Court decision will change the Hawaii Supreme Court's mind, I doubt it," Tonaki said. As long as the Hawaii Supreme Court elects not to be bound by Mollway's ruling, the Rivera decision should remain law for the Hawaii courts, he said.