[ OUR OPINION ]

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High court improves
federal sentencing

THE ISSUE The U.S. Supreme Court has struck down much of the system for sentencing criminals in federal cases.

FEDERAL criminal sentencing guidelines have been transformed by the U.S. Supreme Court, giving judges more flexibility but assigning to juries the responsibility for determining factual bases for making sentences more severe. The high court's ruling appears to push federal sentencing guidelines toward practices that have been in force and worked effectively for years in Hawaii's state courts.

Many federal cases in Hawaii and elsewhere had been on hold since last June, when the Supreme Court ruled that Washington state's sentencing guidelines, which resembled the federal guidelines, violated a defendant's Sixth Amendment right to a trial by jury. The high court struck down those guidelines because they allowed a judge, instead of a jury, to make factual determinations used to increase a defendant's sentence. Undisputed facts, such as a defendant's prior convictions, are exempt from the ruling.

Not surprisingly, the court this week held to its earlier reasoning. In one of the two cases before it, a man convicted of possessing and intending to distribute at least 50 grams of cocaine base received an increased sentence after the judge made a finding that he had distributed 10 times that amount in the weeks before his arrest. That determination, the high court held, should have been put to the jury.

The federal guidelines not only have allowed judges to make factual findings from the preponderance of evidence that increased sentences, they have required that judges be bound by those facts in imposing sentences.

In an unusual two-tiered decision, the high court ruled this week the juries must make those factual findings beyond a reasonable doubt, but judges can exercise discretion in deciding whether they should result in longer sentences. The "reasonableness" of a judge's sentence based on those facts is to be made an issue for appeal.

The Hawaii Supreme Court has long required prosecutors to prove sentence-related facts to a jury and allowed judges to use discretion in applying those facts to a defendant's sentence. After last year's U.S. high court ruling in Blakely vs. Washington, city Deputy Prosecutor Chris Van Marter remarked, "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."

After the Blakely decision, Assistant U.S. Attorney Elliot Enoki said it could have a "dramatic" effect on how his office conducts its business, preparing sentencing-related material to put before juries. In some cases, factual issues that may be prejudicial during a trial could be examined in a second trial, similar to the sentencing phases now following trials in capital punishment cases.

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Don’t stifle surfing
as high school sport

THE ISSUE The Department of Education has proposed regulations for surfing as a high school sport.

THE Board of Education gave its approval last May to sanction surfing as a high school sport, but draft rules for implementation seem to require micro-monitoring of the sport. The proposed requirements could stifle the program before it hits the water and might need to be softened.

Liability problems have been identified from the start. A sensible measure, included in the draft rules, would require that each participant be a certified Junior Lifeguard or have equivalent skills in CPR, swimming, ocean rescue and ocean safety risk management. Obviously, competing surfers should not be beginning swimmers.

However, the proposed rules go overboard in requiring excessive adult supervision, with one water-based coach for every six students in the water, one coach on shore for every 12 students in the water and at least one coach on shore to observe no more than two in-ocean groups.

Iris Kahaulelio, a teacher and coach of the Kahuku High School Surf Club, says it might be difficult to find that many coaches to monitor the competition. A focus group had suggested a 1-to-10 ratio of coaches to students.

Surf clubs already compete at a dozen schools without using school names or mascots at meets. The experience in those competitions should provide sensible guidance for supervision of school-sanctioned events.