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Justice asks Supreme Court for early hearing on federal sentencing

From Terry Frieden

Supreme Court
Justice Department
Judiciary (system of justice)

WASHINGTON (CNN) -- Declaring "disarray" in federal sentencing, Justice Department lawyers late Wednesday asked the Supreme Court to hold a special session and issue a prompt ruling on whether federal sentencing guidelines are unconstitutional.

The Supreme Court prompted the scramble by the federal government with a 5-4 ruling last month that struck down similar sentencing guidelines in a number of states, and cast doubt on whether the 20-year-old federal guidelines also violate the Sixth Amendment right to a fair trial.

Acting Solicitor General Paul Clement filed appeals on sentencing in two drug cases, and urged the justices to assemble to consider the issue as early as September 13, nearly a month before the high court's next term begins.

"The number of cases potentially affected is staggering," Clement told the justices. "There are approximately 64,000 federal criminal defendants sentenced under the guidelines each year," Clement said.

Clement told the court that sentencing "has fallen into a state of deep uncertainty and disarray" in the wake of its June 24 decision in Blakely v Washington.

In that ruling, the Supreme Court said only juries, not judges, may consider aggravating factors that could increase sentences beyond the maximum established in Washington state's sentencing scheme. Although the ruling applied to Washington state's sentencing system, it has thrown confusion into the plans used in other states.

Additionally, some justices indicated the Blakely ruling casts doubt on the constitutionality of the federal guidelines.

The confusion is on display best among the 13 federal appeals courts, the level of courts just below the Supreme Court. Earlier this month the 6th U.S. Circuit Court of Appeals declared the federal sentencing guidelines unconstitutional. The 7th Circuit has done the same, but the 5th Circuit has ruled that the Blakely decision does not apply to federal sentencing guidelines. Other federal appeals courts are still assessing the Supreme Court ruling.

In the three weeks since the Blakely decision, federal judges have taken several different approaches to sentencing, and many sentences have been reduced.

The focus of confusion is on the prison sentencing system established by the Federal Sentencing Commission in 1984, and put into effect in 1987. The system, created to ensure uniform sentencing, sets various levels of punishment for a crime.

The Justice Department filing came as the U.S. Senate on Wednesday rushed through a unanimous resolution urging the Supreme Court to expedite consideration of the case.

Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, said he would develop a "contingency plan to ensure that regardless of what the Supreme Court decides that we will be able to preserve a system that promotes uniformity and reduced sentencing disparity across the country".

A proponent of the federal guidelines, Hatch cited the sentence of a tractor driver who had threatened to blow up part of the National Mall in Washington. A week after the Supreme Court's Blakely ruling, the man's sentence was reduced from six years to 16 months. Hatch also cited a West Virginia case in which a sentence was reduced from 20 years to one year.

CNN's Kevin Drew contributed to this report.

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