Sentencing decision may return quickly to high court

? Just starting their summer break, Supreme Court justices may have to deal quickly with fallout from their decision that is changing the way judges sentence convicted criminals.

The court ruled in the closing days of the term that judges could not lengthen prison terms beyond the maximum spelled out in state sentencing guidelines. The issue could be back at the court any day, though the justices would not have to return to the bench immediately.

Last week, a federal judge in Utah cited the ruling in declaring federal sentencing guidelines unconstitutional in a child sexual exploitation case.

In Washington, D.C., the tobacco farmer who created chaos by crashing his tractor into a pond on the National Mall was released from jail after a judge reduced his sentence in the wake of the high court’s ruling.

Legal experts expect the government to appeal one of those cases, or one like it, to the Supreme Court in a few weeks.

“I don’t think the Supreme Court is going to have much of a vacation from this issue,” said Lawrence Marshall, legal director of Northwestern University’s Center on Wrongful Convictions. “They’re not going to have the luxury of delay.”

Around the country, judges have postponed sentencings or reduced sentences already handed down.

U.S. District Judge Thomas Penfield Jackson reduced the sentence of Dwight Ware Watson from six years to just 16 months for his National Mall standoff with police in a protest over federal agriculture policy. Jackson said his previous sentence did not meet the new Supreme Court standard.

The government must find the best case to appeal, said David Frederick, a Washington lawyer who dealt with sentencing guideline Supreme Court appeals for the government from about 1998 to 2001.

The Bush administration’s Supreme Court lawyers would use a rare procedure of bringing an appeal before judgment — bypassing the monthslong process of taking a case first to an appeals court.

Frederick said they had a persuasive argument for speediness. “Given the number of sentences that get handed down every week around the country, this is a critical issue for the Supreme Court to resolve,” he said.

If the government files its appeal promptly, the summer months will be consumed with the filing of a response and counter-response. Side groups also could file friend-of-court briefs. Then justices could decide when they return from a three-month summer recess whether to hear the case. Arguments likely would be early next year.

A second option would be an emergency appeal to the Supreme Court, requesting even quicker resolution.

The government wants clarification of the June 24 ruling that appears to give defendants a right to demand that every fact that could lengthen a sentence be put to a jury and proved beyond a reasonable doubt.

Under procedures now common in federal and state courthouses, judges make many routine factual determinations, such as the quantity of drugs seized in a raid, whether a gun was used in the crime and how much money is at issue in a fraud case.

In the Blakely v. Washington decision, the court erased the sentence of a wealthy Washington state rancher who kidnapped his estranged wife at knifepoint 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 showed “deliberate cruelty.”

Justice Antonin Scalia wrote the opinion and said in a footnote that federal sentencing guidelines were not at issue.

But dissenters said the ruling still would undermine, if not destroy, the federal system, which was meant to make sentencing fairer by reducing disparities among punishments.