Where Things Stand: Law and Punishment

October 2004 -- There are two major cases pending before the United States Supreme Court, to be considered in the current term, which bear heavily upon sentencing in this country by challenging the Federal Sentencing Guidelines. The cases are United States v. Booker and United States v. Fanfan. These cases are consolidated for appeal, and the Supreme Court held oral arguments on them on October 4, 2004.

The Solicitor General of the United States stated as the first question presented: "Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant."

The second question that was presented is essentially the effect on particular cases if the United States Supreme Court finds that the guidelines are unconstitutional. This would include the particular cases before the court, as well as other similar cases. While it is sometimes misleading to attempt to interpret the result of a case pending before the Court from the questions of the judges during the oral argument of the case, the comments of the justices during those arguments indicated that the Court is likely to hold the Federal Sentencing Guidelines to be unconstitutional.

Stay tuned.

This article was originally published in the October 2004 issue of Navigator magazine, The Atlas Society precursor to The New Individualist.

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