JIM LEHRER: The Supreme Court argument over sentencing guidelines, and to Ray Suarez.
RAY SUAREZ: It's the first Monday in October, and the beginning of a new U.S. Supreme Court term. There has been a great deal of confusion in the court system over the guidelines ever since last June. That's when the Justices struck down a Washington State sentencing law. That decision called the future of federal guidelines into question.
Here to help us sort through today's arguments is NewsHour regular Jan Crawford Greenburg of the Chicago Tribune. Jan, help me out here because the last or one of the last big decisions on last term was on sentencing guidelines.
Why did there have to be so soon a revisit of that issue on an expedited basis to open this year's term?
JAN CRAWFORD GREENBURG: Because that decision, as you said, involved a state sentencing guideline in Washington caused chaos in the lower federal courts. At the time, the Justices decided by vote of 5-4 that the Washington sentencing scheme was unconstitutional but dissenting Justices in that case predicted that it would also doom the federal sentencing guidelines as well, because they operated in much the same way.
So we get the ruling, it comes down and right away in lower courts across the country lawyers are going in asking for re-sentencing hearings and arguing that the federal sentencing guidelines also must fall. Some courts decided the issue one way, other courts decided it another.
So the Supreme Court stepped in and in August said that it would decide this issue very quickly to clear up all this confusion.
RAY SUAREZ: So the stage is set. Who was pleading today? On whose behalf were the arguments being made?
JAN CRAWFORD GREENBURG: Well, this pits defendants who are arguing that the sentencing guidelines are unconstitutional as applied to them, against the United States which argued that the sentencing guidelines should remain in place despite that ruling back in June.
Now, the United States lost in the lower courts, and there are two cases before the Supreme Court today and in those two cases, the lower court said that the June ruling caused it to find the sentencing guidelines on the federal level unconstitutional, and the problem with the sentencing guidelines at the federal level are the same that the Supreme Court found back in June.
RAY SUAREZ: Well, what is the impairment? What was the flaw in the use of sentencing guidelines that the Supreme Court has found that's created the ripple all through system?
JAN CRAWFORD GREENBURG: The guidelines require judges when they're sentencing a defendant to find certain facts that never were before a jury. The Supreme Court in June said that was unconstitutional under a Washington State statute.
Defendants argued today that the federal guidelines operate the same way, so that, too, should be unconstitutional, because it deprives them of their right to a jury trial under the Sixth Amendment.
They argue that because a judge can consider these facts, facts that never were before a jury, such as the amendment of the drugs that they had in their possession, whether or not they were a leader of an organization the ring leader, those kind of facts, that a judge will decide can significantly enhance their sentence you should the sentencing guidelines.
And as a result, that's unconstitutional because they've been deprived their right to a jury trial. The jury should have to make those decisions, the defendants argue.
RAY SUAREZ: So in the face of those arguments, what did the Justices want to hear about and what did that show about their thinking on the matter?
JAN CRAWFORD GREENBURG: Well, this decision, like I said, was 5-4 when the Justices took up the Washington State statute back in June and I didn't see anything today that suggested that those five Justices, a very unusual group of Justices, by the way, kind of combining the most conservative Justices, Scalia and Thomas, with the most liberal Justices, Justice Souter and John Paul Stevens and Justice Ginsburg, that those five were prepared to walk away from what they said in June.
So as a result it looks like we may have a decision from this court that says they believe that the sentencing guidelines are unconstitutional, have constitutional problems. But it was very unclear from the arguments today what the Justices were going to do about that, whether or not they were going to strike down part of the guidelines, whether they were going to say that... "let's just let juries make these decisions, not judges" that's unclear.
That's a very difficult problem for the court. We should get a decision pretty quickly because of the problems it caused in the lower courts.
RAY SUAREZ: But if they make this decision and basically stand by what they said in June, just as a question of mechanics rather than the law, does that open up an appeal possibility for everyone who's been sentenced based on sentencing guidelines?
JAN CRAWFORD GREENBURG: Not everyone. But certainly people who feel their sentences have been increased because a judge under the sentencing guidelines-- and this is the manual-- because a judge under these guidelines considered facts that the jury never heard, the amount of drugs, whether or not they were a ringleader and based on those facts turned to the guidelines and used those facts to dramatically increase the defendant's sentence.
Now, keep in mind, there are 1200 people sentenced to crimes in federal court every week. So, of course, this could have a dramatic impact on federal sentencing.
And the sentencing guidelines have been in place since 197, this is a tremendous... it's impossible to overstate the significance of this case and what the court does in terms of our criminal justice system.
RAY SUAREZ: We have a brief amount of time left. What are some of the other interesting cases that the judges have agreed to hear this term?
JAN CRAWFORD GREENBURG: We can keep it on criminal justice because, you know, last term we heard a lot of cases involving the war on terror. This term the court is going to look at domestic law enforcement. We had the sentencing argument today.
Next week the court will decide whether state and federal governments can execute juvenile killers -- people who are 16 and 17 years old when they commit murder. In 1988, the court said that people under 16 could not be executed under the Constitution. Now they'll decide if those who are 16 and 17 years old can be executed or whether that, in fact, violates the Constitution's Eighth Amendment concern against cruel and unusual punishment.
So that should be a case I think we should all watch from the criminal area. They've got several interesting criminal cases on the docket: One involving the use of drug-sniffing dogs during routine traffic stops. That case comes out of Illinois.
The court also will return to a theme that has captivated the Justices, the balance of federal and state power. That's a pretty complex topic that fascinates law professors but this term it has real-world implications. One case out of California will decide whether the federal government can prosecute people for using marijuana for medical purposes.
The state says people can use drugs for those reasons, the federal government has come in to prosecute, so pretty significant issues.
RAY SUAREZ: Jan Crawford Greenburg, thanks for being with us.
: You're welcome.