Federal courts nationwide are in disarray after the U.S. Supreme Court handed down a ruling intended to correct sentencing injustices, and some experts are looking to Kansas’ judicial system for answers.

In 2001, Kansas’ legal system recognized and fixed a problem that, in light of the Supreme Court’s June 24 decision in Blakely v. Washington, is causing turmoil in courtrooms across the country.

The problem is this: For years, it’s been possible for defendants in federal court and many state courts to be convicted of one crime, then in effect to be punished for a more severe crime based on facts found by a judge at sentencing.

If judges wanted to exceed the penalty called for under sentencing guidelines, they could do so based on facts proved by the relatively low standard of “a preponderance of the evidence” — in other words, more likely true than not.

For example, a defendant might be convicted in U.S. District Court of distributing 50 grams of cocaine. But at sentencing, a judge could make a finding that the person actually sold 500 grams of cocaine.

The result: a stiffer penalty based on less-certain facts found by a judge, not a jury.

Kansas precedence

The Kansas Supreme Court struck down that practice in 2001 in State v. Gould. The case, argued successfully by the Kansas Appellate Defender’s Office, said that if a judge wanted to exceed the maximum penalty set forth by state sentencing guidelines, the reasoning must be based on facts either admitted by the defendant or proved to a jury beyond a reasonable doubt.

“Kansas’ Supreme Court was one of the first courts to reach that issue and decide it,” said Randall Hodgkinson, deputy appellate defender.

In Blakely v. Washington, the U.S. Supreme Court reached essentially the same conclusion.

“The jury could not function as circuitbreaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish,” Justice Antonin Scalia wrote in a 5-4 majority opinion.

That case involved Washington state’s sentencing scheme, but because federal rules are so similar, some experts are predicting the federal sentencing guidelines will have to be scrapped and rewritten. In testimony last week before Congress, one expert said it didn’t have to be that difficult, if the feds followed Kansas’ lead.

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Kansas’ model, enacted by the Legislature in 2002 after the Kansas Supreme Court case, is simple: have a procedure in place for two separate jury processes, one for trial and one to find facts before sentencing.

If jurors find there are enough facts to justify a sentence beyond the normal guidelines, the judge can then decide whether to impose the sentence.

“In my view, the Kansas model warrants serious consideration as a long-term response to Blakely,” Ronald Weich, a Washington, D.C.-based attorney who helped shape federal sentencing guidelines in the late 1980s, told the Senate Judiciary Committee in a hearing on Capitol Hill last week, according to a transcript.

Federal confusion

As Congress ponders fixing the system, federal courts have, in the words of U.S. Sen. Orrin Hatch, “begun to run amok.” Recently sentenced prisoners are filing legal challenges. Defense attorneys are asking for delayed sentencings as they try to figure out what to tell their clients. The Justice Department has instructed prosecutors to try to get defendants to waive their “rights under Blakely” during plea negotiations.

“It injects a tremendous amount of uncertainty into how we deal with sentencing at the federal level,” said Kirk Redmond, an assistant federal public defender in Topeka.

Redmond, a Lawrence resident, previously worked in the Kansas Appellate Defender’s Office and wrote a brief for the Kansas Supreme Court in the Gould case.

Judge Deanell Reece Tacha, a Lawrence resident who serves as chief judge of the 10th Circuit Court of Appeals in Denver, said her court had received a handful of cases related to Blakely v. Washington, but the district had not yet made a major ruling on the subject. The court hears appeals of federal cases from Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

“We’re all trying to handle these cases just as expeditiously as we can,” Tacha said.

Kena Rice, a spokeswoman in Wichita for Eric Melgren, the U.S. attorney for Kansas, said “it’s too early” to describe how many cases in Kansas could be affected by the Blakely decision.

Melgren couldn’t be reached for comment.