updated 7/6/2004 9:08:18 PM ET 2004-07-07T01:08:18

The Justice Department is adding significantly to the workload for federal prosecutors, telling them they must include far more information in criminal indictments and seek additional indictments in thousands of pending cases to comply with a Supreme Court decision.

The Bush administration is fashioning a legal defense to that ruling, which has led several judges to declare federal sentencing guidelines unconstitutional.

In a memo to federal prosecutors, Deputy Attorney General James Comey spelled out changes to be followed while the government defends the guidelines.

The nearly 20-year-old system of sentencing people convicted in federal court was called into question by the Supreme Court’s ruling late last month in a state sentencing case. Justices said only juries, not judges, can decide factors that lengthen prison terms beyond maximums spelled out in state sentencing guidelines.

The ruling also appears to give defendants a right to demand that every factor that could lengthen a sentence be put to a jury and proved beyond reasonable doubt.

Comey said the government does not believe that ruling should apply to federal judges, who often make factual determinations that add years to prison sentences.

Aggravating factors an issue
To be on the safe side, however, he said prosecutors should include aggravating factors in indictments that could add time to prison sentences, to be decided by a jury. Comey said that new indictments should be sought with that information in pending cases.

“In light of the unpredictable future path of court rulings, it is prudent for the government to protect against the possibility that such allegations in indictments will be held necessary,” Comey wrote in the memo dated Friday.

He also said defendants pleading guilty should sign waivers that agree to let a judge decide their fates.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said Tuesday that the directives mean more work for prosecutors but the changes are smart.

“I think any prosecuting agency that doesn’t protect itself would be foolish,” he said.

Two sentences?
In addition, Comey said that judges should be encouraged to give two sentences, one under the old system and one to be used if federal sentencing guidelines are declared unconstitutional by the Supreme Court.

“I don’t think there are any answers to anything,” said Susan Klein, a former federal prosecutor who teaches law at the University of Texas at Austin.

She said despite the government’s position, judges around the country disagree and the ultimate authority will be the Supreme Court. “Things are going to be a mess until that happens,” she said.

In the Blakely v. Washington decision, the court said a wealthy Washington state rancher was wrongly given a longer sentence for kidnapping his estranged wife in 1998. Ralph Howard Blakely II pleaded guilty in a deal with prosecutors and expected a sentence of about four years as set in state sentencing guidelines.

A judge added three years to Blakely’s prison term after finding that Blakely had showed “deliberate cruelty.”

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