WASHINGTON (AP) — The U.S. Supreme Court appeared poised
yesterday to alter the system used for sentencing 64,000 federal
criminal defendants a year, but justices clashed over whether
changes would create greater inequity.

Judges, not juries, consider factors that can add years to
defendants’ prison sentences, under the government’s
17-year-old system which has been challenged as
unconstitutional.

Justice Antonin Scalia said lucky accused criminals go before
merciful judges. The unlucky, he said, can face a “hanging
judge.”

“The whole reason for jury trials is we don’t trust
judges,” he said.

Scalia wrote a stunning 5 to 4 ruling in June that struck down a
state sentencing system because it gave judges too much leeway in
sentencing. The ruling caused judges around the country to delay
sentencings or hand down lighter penalties.

Justices heard two follow-up appeals yesterday, on the opening
day of their new term, that will decide the fate of the federal
system set up by Congress to make sentencing more fair.

While juries consider guilt or innocence, judges make factual
decisions that affect prison time, such as the amount of drugs
involved in a crime, the number of victims in a fraud or whether a
defendant committed perjury during trial.

The three-month summer break did not appear to erase the worries
of five justices that a defendant’s Sixth Amendment right to
a jury trial is undermined when a judge, instead of jurors, makes
critical decisions that add time to the sentence.

Instead, justices wrangled for nearly two hours over what parts
of the sentencing scheme are acceptable, as well as the practical
impact on jury trials of their eventual decision.

“Maybe we should just leave it to Congress to
decide,” said Justice Sandra Day O’Connor, who had said
in a speech this summer that justices caused a “No. 10
earthquake” in courthouses with the June ruling.

The federal guidelines were being challenged in two cases
involving men convicted on drug charges. Guidelines, used in
federal courts and by many states, give judges a range of possible
sentences for each crime, but factors affect the final
sentence.

Justice Anthony Kennedy said that without guidelines, judges
have “unexplained, unarticulated, standardless
discretion.”

“You don’t have to throw out 20 years of sentencing
reform,” said Rosemary Scapicchio, a Boston attorney
representing a man in one of the two cases.

She said the only change is that jurors, not judges, will handle
those decisions.

But Paul Clement, the Bush administration’s acting
solicitor general, said that juries’ jobs will become too
complicated. They will face pages and pages of questions, instead
of straightforward decisions about someone’s innocence.

“We give jury instructions that are complicated all the
time,” said Christopher Kelly of Madison, Wis., the attorney
for the other man.

After the court’s June ruling, federal prosecutors changed
the way they indict defendants and handle plea bargains.
They’ve also been asking judges to consider two sentences
— one to be used should the sentencing structure be found
constitutional, and one if it were overturned.

Yesterday’s appeals involve people sentenced on drug
charges in Wisconsin and Maine. Both will get lighter sentences if
the court rules against the government, as could other defendants
whose sentences are not final.

“They are seeking a huge sentencing windfall here,”
Clement said.

Clement told the justices they don’t have to throw out the
entire sentencing law. A ruling is likely before the end of the
year.

Attorney General John Ashcroft said at a news conference
yesterday that crime has dropped and tough sentencing guidelines
are one key reason.

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