A pair of U.S. Supreme Court rulings will allow federal judges to decide whether to impose longer or shorter sentences than are prescribed in federal guidelines – but the sentences can be reversed on appeal if found unreasonable.
The seeming inconsistency in the rulings have attorneys, including several in the Adult entertainment world, scrambling to sort it out.
In one of the two rulings, Justice Stephen Breyer wrote that the federal sentencing guidelines should not be mandatory but voluntary, and that judges had the right to use the guidelines as advisory documents. In the other, Justice John Paul Stevens wrote that you can’t enhance a sentence imposed under the guidelines and apply them as required sentences without the defendant admitting to a fact or a jury finding a fact.
“That sounds like two inconsistent statements to me,” attorney Paul Cambria told AVNOnline.comthe day after the rulings came down. “On the one hand, the court says you should not have your liberty taken away based on facts not found by a jury, or that you don’t admit. On the other hand, they’re saying that a judge in essence [can] find the facts under whatever standard and impose more time. That seems to me a total, total dichotomy. I cannot see how those two positions can be consistent at all.”
The sentencing guidelines in question were first set up in the 1980s to help guarantee the same crime got the same punishment around the country. But analysts have said the guidelines have been questioned trans-ideologically, from liberals, defense attorneys, and some judges saying the guidelines have meant excessive sentences for some, and from conservatives and prosecutors accusing some judges of eluding the guidelines and cutting criminals too many breaks.
"The decision appears to return significant discretion to the judges in sentencing in part by diminishing the power of the prosecutor to dictate sentences through plea bargaining decisions," Oregon public defender Stephen T. Wax told reporters after the January 12 decisions.
The only Supreme Court justice who assented to both opinions was Ruth Bader Ginsburg, who voted both with the majority holding the current sentencing guidelines unconstitutional and with that holding that they should be kept voluntary only.
The Court division between the two intrigued some observers: One group of five justices (Breyer, Ginsburg, Chief Justice Williams Rehnquist and Justices Sandra Day O’Connor and Anthony M. Kennedy), supported the system modification, and a separate group of five (Stevens, Ginsburg, and Justices Antonin Scalia, David Souter, and Clarence Thomas) opinion on unconstitutionality.
But some of the justices assailed the split decision. Scalia said he feared it would wreak havoc in the criminal justice system, while Stevens called the Breyer opinion “a gross impropriety.”
“I don’t think it’s likely to mean much at all” regarding Adult entertainment issues, Chicago-based First Amendment and Adult entertainment attorney J.D. Obenberger said of the Court rulings, though he added the sentencing guidelines themselves could be seen as “draconian” when applied to Internet issues.
“I think the federal judges will continue to consult the guidelines, which means they’ll adhere to the sentencing, but they now have the liberty to deviate,” Obenberger said. “There may be some limited circumstances in which there is some hope for justice in sentencing, but for the most part I think they’ll adhere to those guidelines.”
Reed Lee, an associate in Obenberger’s firm, said he thought the judges whose service began before the guidelines were written in the mid-1980s had chafed under the guidelines when they were treated as mandatory.
“I think they will take the admonition to keep them in mind and keep them in mind.” Lee said. “I think, by and large, at least for judges that have been around for awhile, it will lead to more departures. I think yesterday was a victory for those who think federal sentencing is too harsh. I thought the guidelines were unconstitutional from the time they were written.”
Cambria predicted attorneys in Adult and elsewhere challenging any sentences beyond the basic guidelines. “Any sentence that’s going to be above the base sentence, I think, lawyers are going to challenge as a violation of the Sixth Amendment unless the defendant admitted the contents or the fact is proven by a jury.”
He said the two rulings are confusing because one of the prime issues they’ll prove to have raised is how a judge can do “basically the exact thing the Supreme Court said violated the right to a jury trial and the Sixth Amendment.”
