updated 10/4/2004 8:53:15 PM ET 2004-10-05T00:53:15

The Supreme Court returned for another term Monday and wasted no time getting down to business, appearing poised to alter the system used to sentence 64,000 federal criminal defendants a year.

But justices clashed over whether any changes they made would create greater inequity in the federal system.

Judges, not juries, consider factors that can add years to defendants’ prison sentences under the government’s 17-year-old system, which has been challenged as unconstitutional.

Justice Antonin Scalia said lucky accused criminals went before merciful judges. The unlucky, he said, can face a “hanging judge.”

“The whole reason for jury trials is we don’t trust judges,” he said.

Scalia wrote a stunning 5-to-4 ruling in June that struck down a state sentencing system because it gave judges too much leeway in sentencing. The ruling caused judges around the country to delay sentencings or to hand down lighter penalties.

The Supreme Court tackled its toughest cases of the year, two follow-up appeals to the June ruling, on the opening day of a nine-month term. Justices heard an extraordinary two-hour argument in cases that will decide the fate of the federal system Congress set up to make sure sentences did not vary widely courtroom to courtroom.

While juries consider guilt or innocence, judges make factual decisions that affect prison time, such as the amount of drugs involved in a crime, the number of victims in a fraud or whether a defendant committed perjury during the trial.

The three-month summer break did not appear to erase the worries of five justices that a defendant’s Sixth Amendment right to a jury trial was undermined when a judge, instead of jurors, made critical decisions that added time to a sentence.

Instead, justices wrangled for nearly two hours over what parts of the sentencing scheme were acceptable, as well as the practical impact on jury trials of their eventual decision.

“Maybe we should just leave it to Congress to decide,” said Justice Sandra Day O’Connor, who had said in a speech this summer that justices caused a “No. 10 earthquake” in courthouses with the June ruling.

Ranges for judges to consider
The federal guidelines are being challenged in two cases involving men convicted on drug charges. Guidelines, used in federal courts and by many states, give judges a range of possible sentences for each crime, but factors affect the final sentence.

Justice Anthony M. Kennedy said that without guidelines, judges had “unexplained, unarticulated, standardless discretion.”

Road map to the Supreme Court

Rosemary Scapicchio, a Boston lawyer representing a man in one of the two cases, said, “You don’t have to throw out 20 years of sentencing reform.”

She said the only change was that jurors, not judges, would handle those decisions.

But Paul Clement, the Bush administration’s acting solicitor general, said juries’ jobs would become too complicated. They would face pages and pages of questions, instead of straightforward decisions about someone’s innocence.

“We give jury instructions that are complicated all the time,” said Christopher Kelly of Madison, Wis., the attorney for the other man.

After the court’s ruling in June, federal prosecutors changed the way they indicted defendants and handled plea bargains. They also have been asking judges to consider two sentences — one to be used should the sentencing structure be found constitutional and one if it were overturned.

Cases from Maine, Wisconsin
Monday’s appeals involve people sentenced on drug charges in Wisconsin and Maine. Both will get lighter sentences if the court rules against the government, as could other defendants whose sentences are not final.

“They are seeking a huge sentencing windfall here,” Clement said.

Clement told the justices that they did not have to throw out the entire sentencing law. A ruling is likely before the end of the year.

Attorney General John Ashcroft said at a news conference Monday that crime had dropped and that tough sentencing guidelines were one key reason.

“If you do the crime, you’ll do the time,” he said in urging justices to keep the current system. “It is profoundly essential that we have certainty of punishment.”

The cases are United States v. Booker, 04-104, and United States v. Fanfan, 04-105.

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