National Public Radio's Tony Cox Show with Barry Scheck and Jeffrey Fisher


National Public Radio (NPR)
SHOW: NPR News with Tony Cox 9:00 AM EST NPR

January 13, 2005 Thursday

LENGTH: 2107 words

HEADLINE: Supreme Court reform

ANCHORS: TONY COX

BODY:


TONY COX, host:

From NPR News, I'm Tony Cox.

On today's show, we'll talk to Neal Petersen who overcame disability and South African apartheid to become the first black man to race around the globe in a boat solo. Also, we'll hear from Ruben Martinez who turned his barbershop into a bookstore and won the MacArthur Foundation's Genius prize in the process. And, finally, she's 15, Latina, never leaves home without her cell phone, and just so happens to have spider genes. We'll meet Marvel Comics' latest and most diverse edition to the Spider-Man legacy.

But, first, judge vs. jury: The Supreme Court weighs in. Each week 1,200 people are sentenced in the federal courts. Though a defendant's case may be tried by a jury, federal judges have long reserved the right to alter the sentence handed down based on additional evidence. But this practice, the highest court in the land ruled yesterday, is wrong and unjustifiably takes the defendant's fate out of the hands of the jury. The court's ruling was a razor-thin 5-to-4 vote.

In a moment, we'll sort through the details of the high court's decision with Charles Hobson, an attorney with the Criminal Justice Legal Foundation, and Barry Scheck, president of the National Association of Criminal Defense Lawyers.

But, first, we are joined by Jeff Fisher, a partner at Seattle-based Davis Wright Tremaine, and the lawyer who successfully argued a Washington state case last year before the high court that set the stage for Wednesday's ruling. Jeff, thank you very much for coming on.

Mr. JEFF FISHER (Davis Wright Tremaine): Thanks for having me.

COX: A couple of quick points. Number one, I'd like to ask you to very briefly detail what happened with the case of Blakely vs. Washington state, and, secondly, since yours was a state case, and the Supreme Court decision concerns federal sentencing guidelines, it would seem that your case, although it was a precedent-setter in the federal issue, made the federal case moot, so can you address both those points?

Mr. FISHER: Sure. The Blakely case, as you said, arose from a state court case in the state of Washington. We in Washington, like a lot of other states, and like the federal court system, have a sentencing guideline system, which basically means when somebody's convicted of a felony, there is a standard sentence, or an average sentence that judges are to look to. But what the situation was here in Washington, like other places, is that judges were not bound by that standard sentence. They could increase the sentence if they found extra facts beyond what the jury had found or beyond what the defendant had pleaded guilty to.

So Mr. Blakely's case, he was accused of kidnapping his wife. He pleaded guilty to second-degree kidnapping for that offense, which carried a 53-month standard sentence, and that's what the sentence Mr. Blakely thought he was going to get. However, after the judge accepted that guilty plea, he increased the sentence by more than three years, to 90 months, on the basis of the judge's finding, which Mr. Blakely disputed, that he'd acted with deliberate cruelty. What Mr. Blakely's argument was, that I put forward in the Supreme Court, was that, `Listen, if you have a standard sentence like this, that's a certain crime, and if the judge is going to make extra fact-finding, that's like finding somebody guilty of a more serious crime. And if you're going to find somebody guilty of a more serious crime, they should have the right to go to a jury and to contest that more serious crime.' In other words, it was like finding him guilty of murder when he'd only been convicted of manslaughter, and sentencing him for murder.

And so what the Supreme Court said in my case was that--it sided with my argument and said the Seventh Amendment--I'm sorry, the Sixth Amendment right to trial by jury allows a defendant to contest these extra facts that would increase his sentence before the jury and the judge can't do it alone.

COX: All right. Well, we're gonna get more of the details of the court's decision yesterday. I want to thank you for coming on. Jeff Fisher is a partner at the firm Davis Wright Tremaine. Spoke to us from his home in Seattle.

Once again, Jeff, thank you very much.

Mr. FISHER: Sure.

COX: Coming on now to help us dig a little bit deeper into the ruling is Charles Hobson, an attorney with the Criminal Justice Legal Foundation in Sacramento, and Barry Scheck, professor at New York's Cardozo School of Law, and president of the National Association of Criminal Defense Lawyers.

Gentlemen, thank you both for coming on.

Mr. CHARLES HOBSON (Criminal Justice Legal Foundation): Thank you.

Professor BARRY SCHECK (Cardozo School of Law): Thank you very much.

COX: Barry, let's start here. We just heard from Jeff Fisher who helped put these wheels in motion. But yesterday's ruling--I asked him that and we didn't have enough time for him to get the answer so I'm gonna bring it to you. Yesterday's ruling involved two more cases. Why did it require three cases for the Supreme Court to demand reform?

Prof. SCHECK: Well, the Blakely case set the stage that actually had started much earlier with a ruling called Apprendi that was going to require juries to find facts essential to sentencing and that would enhance sentences. And that's how this ruling begins because everybody kind of knew this was coming, that to that extent the federal sentencing guidelines would be unconstitutional insofar as it allowed judges to make factual findings that were essential to the sentences. And the real issue in front of the Supreme Court is how far they would go, how many--and the initial part of the decision by Stevens invalidated, you know, parts of the guidelines.

And then Justice Breyer, in what many regard as a very successful end run on his part, to try to preserve the basic architecture of the sentencing guideline system, was able to say, `Well, we'll make only certain parts of the sentencing guideline statute unconstitutional and we'll simply make the guidelines advisory, we'll make appeals from sentences by judges who must consult but don't have to follow the guidelines, judged on the basis of reasonableness, and, in effect, preserve and actually greatly enhance the discretion of judges to determine what sentences they want to give.'

COX: Well, let me bring Charles in on this. Charles, were you surprised at all by the court's split on this, and what I'm getting at is it's not often that you would think that you would see Justices Scalia and Thomas siding with Souter, Stevens and Bader Ginsburg. What happened?

Mr. HOBSON: Well, on this whole Apprendi issue, the court has some unusual splits. Justices Scalia and Thomas, who typically vote in favor of the prosecution, have sided with the defense on this case. The key vote in this case was Justice Ginsburg. Justice Breyer, has--who was--helped write the sentencing guidelines. He was attorney to the sentencing guideline commission when it first wrote this--the guidelines, has always been opposed to extending--to Apprendi itself, and to extending Apprendi. Justice Ginsburg, who was usually provided--she provided one of the five votes in the Blakely decision, and she basically split off for the most important part of this decision, which is Justice Breyer's separate opinion which basically severed just two portions of the sentencing guidelines and have turned them into an advisory system. In practice, there will be much less change than one would have expected, let's say, two days ago. Most sentences, I think, in the federal system will still would have been what they would have been before this decision came down yesterday. There will be some changes but far, far less than most people had expected after the Blakely decision.

COX: Let me ask both of you, starting with you, Barry, African-Americans make up less than 15 percent of the US population, yet are more than 40 percent of all inmates in federal prisons. How will this reversal effect these inmates? Is it something--will it be better for them or not?

Prof. SCHECK: Not much. I think in the final analysis what really has to be examined is--in terms of African-Americans and, frankly, you know, just in terms of basic justice, are the mandatory minimums that are present in the federal system for narcotics cases. We have 170,000 federal inmates and, really, as many as 40 percent of them are in prison for non-violent narcotics offenses and that is not so much a result of the guideline system as these mandatory minimums that you'll find judges like Paul Cassell, who's a judge in Utah, a member of the Federalist Society, and a sentencing guide of 55 years in jail, and, you know, protests this whole system. So we're not getting to the root of the problem here till we go after these mandatory minimums which I think, you know, across the board, people don't like, whether you're on the right or the left, Republican or Democrat.

COX: What do you say about that, Charles?

Mr. HOBSON: Well, interestingly enough, the Supreme Court upheld mandatory minimum sentences; I believe it was three years ago, two or three years ago. On a case by case basis, they can cause considerable difficulties. I think you have to look at each mandatory minimum sentence on its own basis. Congress has enacted them and many times enacted them because there were concerns about the damage to the society by drug crimes. They're certainly ones that need to be reconsidered and that's something for Congress to do, not for the courts, and that's one thing. The Supreme Court's been pretty assertive in the court's prerogative in these cases, but not in the case of mandatory minimums, which they upheld, in another 5-4 decision...

COX: What about...

Mr. HOBSON: ...which is the only type of decision you get in these cases.

COX: ...that, Barry? What will--what happens now? Is it business as usual until Congress acts?

Prof. SCHECK: Well, to some certain extent, yeah. I think that, you know, as Mr. Hobson mentioned, there's no question that Justice Ginsburg went along with Justice Breyer to not change the system that much. I mean, judges will be sentencing in accordance with the guidelines but they'll have a lot more discretion if they want to depart. But the whole issue of these mandatory minimums--you have to understand, the American Bar Association came out with a report at the behest of Justice Kennedy, calling for cutbacks on these mandatory minimums, particularly in narcotics cases. And that's why, you know, particularly, the race effects of these statutes, when you're dealing with crack cocaine, is what accounts for the great disparity in terms of blacks being in jail as opposed to others in the federal system. So there is a game plan that the ABA and people from both the right and the left are asking Congress to consider and, you know, that would be the best description to restore just sentencing to the federal system, cut back on these mandatory minimums, find a different way to do it, particularly for narcotics offenses, which is, you know, the dominant crime that people are in jail for in the federal system.

COX: We have less than a minute to go. Charles, I want to very, very briefly ask you to respond to this. This court decision coming down as it did now, would it have made a difference, let's say, if Rehnquist had--was gone or if someone like Gonzales, for example, were on the court in the future. Look in to the crystal ball a little bit and tell us how that might have been different, if you can.

Mr. HOBSON: Well, it's hard to say. I mean, certainly Rehnquist provided one of the five votes for the Breyer opinion in that sense. It might have made a difference. Although I think anybody that President Bush would have appointed--and I certainly believe Gonzales, had he been appointed, would have been in that five-vote majority in the Breyer decision. What's interesting is there are rumors that Justice Scalia may retire. There have been rumors for the last five years. If he retires, and is appointed--and is replaced by someone more amenable to the Breyer position, or even the position of the whole Apprendi line of cases, shouldn't--should not exist, you might see this reverse...

COX: Our time is going to run out. I'm a--I apologize. I thought we could get that answer in. We'll have to pick it up the next time we get together. Charles Hobson, an attorney with the Criminal Justice Legal Foundation in Sacramento; Barry Scheck, professor at Cardozo School of Law, president of the National Association of Criminal Defense Lawyers--Guys, thank you very much.

Prof. SCHECK: Thank you very much.

COX: It's 19 minutes past the hour.

LOAD-DATE: January 13, 2005


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