Judge for Themselves

By Mitch Frank

Freddie Booker was already in trouble when he entered a federal courtroom in Madison, Wis., two years ago for a sentencing hearing. A jury had found Booker, 51, guilty of possessing 3 oz. of crack cocaine, with the intention to distribute, which meant he was facing at least 10 years in prison. But when prosecutors informed the judge that Booker had told cops after his arrest that he had previously sold more than a pound of crack, his situation quickly went from bad to worse. Because of that evidence, which was never presented to the jury, the judge had little choice but to sentence Booker to no less than 30 years in federal prison.

Booker was sitting in a cell in Oshkosh, Wis., last Wednesday when the U.S. Supreme Court ruled that the restrictive guidelines under which he was sentenced are unconstitutional. Even if his sentence is reduced, Booker is still facing some 20 years behind bars. But his case will have an impact on the 60,000 defendants sentenced in federal courts each year, and it calls into question the prison terms of many of the 180,000 people in federal cells--everyone from crack dealers to Martha Stewart.

While dramatically increasing judges' sentencing power, the court's controversial decision may heat up a nasty cold war between the federal judiciary and congressional Republicans. Judges used to have almost unlimited discretion. A defendant could receive 15 years in jail or probation, depending on which judge he or she stood before. But two decades ago, in an effort to make the system fairer, Congress passed the Sentencing Reform Act, which established a commission of judges and other legal experts to craft a range of penalties for each crime. Judges could increase or decrease the prescribed sentences because of aggravating or mitigating factors--a gun was used in the crime, for example, or the defendant served in the military--but they didn't have much flexibility. And with prosecutors allowed to present evidence at sentencing that they didn't have to put forward at trial, defendants had even less leverage. It's no wonder 97% of federal cases were settled by plea bargain last year.

Since then judges have argued that Republican politicians--always eager to look tough on crime--have been tightening guidelines and further chipping away at their prized independence. House Judiciary Committee chairman Jim Sensenbrenner once threatened to subpoena a federal district judge's records to see whether he had been too lenient, and a year later, Attorney General John Ashcroft ordered federal prosecutors to report judges who were similarly showing too much forgiveness.

Many court watchers view last week's decision as a retaliatory shot, one that Congress is almost certain to return with equal ferocity. House conservatives may respond by passing stricter minimum sentences for a whole range of federal offenses, and the Senate is sure to hold hearings, at the very least. Senate Judiciary Committee aides told TIME that they expect an enormous amount of litigation to result from the decision. From his vacation in the Caribbean, Republican Representative Tom Feeney of Florida issued a statement denouncing the Supreme Court for placing "extraordinary power ... in the hands of a single judge" and flying "in the face of the clear will of Congress."

It took an unusual coalition of five Justices, including conservatives like Antonin Scalia and liberals like Ruth Bader Ginsburg, to come up with the landmark ruling that the guidelines violated defendants' right to a jury trial. But when the Justices debated a remedy, Ginsburg flipped her vote. Instead of backing the Scalia camp's solution, which was to let jurors listen to and rule on all the factors previously reserved for judges, she sided with Justice Stephen Breyer and their three other colleagues, who argued that judges should consult the guidelines but use their discretion on a case-by-case basis. Appellate courts can then decide whether those sentences are "reasonable." With that kind of room for discretion sure to enrage conservatives, it's a safe bet that the dispute will soon return to the Supreme Court. By then, one or two new Justices, armed with their particular biases--and almost unchallenged autonomy--could change the rules again. --With reporting by Brian Bennett and Massimo Calabresi/ Washington and Kristina Dell/ New York

With reporting by Brian Bennett; Massimo Calabresi/ Washington; Kristina Dell/ New York