Weed Watch

On Jan. 12, in a rare split ruling, the U.S. Supreme Court declared unconstitutional the federal sentencing guideline scheme enacted by Congress in the mid-Eighties in response to an increase in drug crimes, ruling that as currently applied the guidelines violate the Sixth Amendment right to a jury trial, and opining that the most advisable remedy is to transform the guidelines from a mandatory to an advisory tool for use by judges.

Last summer the Supremes agreed to accept and expedite two appeals brought to them by the federal government, which asked the judges to determine whether the Federal Sentencing Guidelines, written into the Sentencing Reform Act of 1984, would be affected by the court's June 24 decision to toss similar guidelines at use in Washington State. In that case, styled Blakely v. Washington, the court ruled 5-4 (with the court's conservative and liberal judges joining together against the middle) that the Washington sentencing guidelines were unconstitutional because they forced judges to increase jail time for a defendant based on a bench finding of facts never presented to a jury, a violation of the Sixth Amendment. On its face, the Blakely ruling only affected state sentencing schemes, but it threw the feds into confusion because federal courts routinely decide sentences based on evidence never presented to a jury.

Almost immediately, two federal drug prosecutions were called into question. In those cases, U.S. v. Booker and U.S. v. Fanfan, the defendants were found guilty on federal drug charges by jurors (for possession and intent to distribute various amounts of cocaine and crack), but were facing harsher sentences based on judicial determination that each had actually been responsible for trafficking a greater quantity of dope than determined by jurors. Although the FSGs called for enhanced sentences for both Booker and Fanfan, the presiding judges in those cases – citing the Blakely decision – declined to impose the harsher sentences. In a tizzy, the feds appealed both cases to the high court.

On Wednesday, in the same 5-4 split as in Blakely, the court ruled that the FSGs violate the constitutional right to a jury trial. The so-called "guidelines" are in fact mandatory, Justice John Paul Stevens opined for the majority in the first part of the ruling, and therefore are "incompatible" with the guaranteed right to a jury trial. The guidelines "as written … are not advisory; they are mandatory and binding on all judges," Stevens wrote. While passage of the sentencing scheme "reflected the growing and wholly justified legislative concern about the proliferation and variety of drug crimes," Stevens wrote, the effect of the enhanced sentencing ranges "was to increase the judge's power and to diminish that of the jury." As a result, "[a]s the enhancements became greater, the jury's finding of the underlying crime became less significant," he wrote. "And the enhancements became very serious indeed."

While the majority – Stevens, joined by Justices Antonin Scalia, Clarence Thomas, David Souter, and Ruth Bader Ginsburg – tossed the mandatory "guideline" scheme, in a seemingly contradictory second-part ruling, Ginsburg jumped ship to form a majority with Chief Justice William Rehnquist and Justice Sandra Day O'Connor, Anthony Kennedy, and Stephen Breyer to provide a remedy for the situation, which at least partially restores the sentencing scheme ditched by the majority in the Stevens ruling. In part two, Breyer wrote for the majority that the only way to remedy the FSG part one ruling is to say that the sentencing guidelines can still be used if they're voluntary and not mandatory. Thus, a jury's finding can be enhanced at sentencing through judicial discretion. The SRA provision that makes the guidelines mandatory must be "severed and excised," Breyer wrote, and by doing that, the FSGs become "effectively advisory." That way judges still have additional latitude in sentencing, maintaining the FSGs as "advisory [for judges], while maintaining a strong connection between the sentence imposed and the offender's real conduct," which would achieve the uniformity and consistency in sentencing that Congress intended with passage of the SRA. In effect, the Breyer majority opined that judges should still have authority to take guidelines for upward sentencing into account, but that those discretionary sentences could be reversed on appeal upon a determination that the sentence was unreasonable.

Naturally, Stevens authored a dissent (which Souter and Scalia joined in part), blasting the Breyer majority for undercutting the Sixth Amendment holding from part one, calling the Breyer opinion an "extraordinary exercise of authority." Scalia was even more incensed, opining that "[o]nly in Wonderland" would such a scheme as that devised by the Breyer majority make any sense. "The worst feature of the scheme is that no one knows – and perhaps no one is meant to know – how advisory Guidelines and 'unreasonableness' review will function in practice," he wrote.