Court report: states lose a few in this term's U.S. Supreme Court decisions.

Lawmakers in many states may soon need to take a close look at how criminals are sentenced in their state courts, thanks to a recent Supreme Court ruling that has upset the traditional rules for crime and punishment.

Until this year, the general rule has been that juries decide whether a defendant is guilty of crime, and, if so, the judge imposes a punishment. But the Supreme Court insists that the Constitution requires that juries, not judges acting alone, must decide all the facts that justify a long prison term.

"The founders of the American Republic were not prepared to leave it to the state" to decide who is guilty and what punishment is deserved, wrote Justice Antonin Scalia in the first of a series of rulings that strengthened the right to jury trials. "Judges, it is sometimes necessary to remind ourselves, are part of the state," he added.

Scalia has been the leader of an unusual five-member liberal-conservative coalition that has struck down stiff sentences imposed by judges. Four years ago, in the case of Apprendi v. New Jersey, the high court threw out part of a 12-year prison term that a judge had imposed on a middle-aged white man who, after drinking heavily, shot a bullet at the home of an African American neighbor.

The defendant, Charles Apprendi, pled guilty to an assault, which carried a maximum term of 10 years in prison. However, he was given extra time behind bars because the judge decided his offense amounted to a hate crime.

In reversing Apprendi's sentences, the justices announced a strict, new rule: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

Until this year, the Apprendi decision was seen as significant, but limited, since the new rule was triggered only when the sentence went beyond "the statutory maximum."

But this limitation seemingly evaporated in June when the high court struck down the sentence given to a Washington state kidnapper. Ralph Blakely had pied guilty to abducting his estranged wife and their son, a felony that carried a maximum of 10 years in prison. The judge had sent him to prison for seven-and-a-half years. Nonetheless, the Supreme Court found this punishment unconstitutional because his sentence exceeded the guidelines that had been set in the state's Sentencing Reform Act.

Washington's Legislature, along with at least 10 other states and the federal government, tried to ensure that similar crimes would be punished in the same way, regardless of who was the judge. Under Washington's guidelines, second-degree kidnapping with a weapon called for 49 to $3 months in prison, and that's the sentence Blakely expected when he pled guilty.

However, the judge heard testimony that the defendant had accosted his wife with a knife, wrapped her in duct tape and put her in a wooden coffin in the back of his pickup. This extreme cruelty called for a more severe punishment, the judge said, and he imposed a 90-month prison term.

In Blakely v. Washington, Justice Scalia said this extra sentence was unconstitutional. "Our precedents make clear that the 'statutory maximum' ... is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant," he said. "When a judge inflicts punishment that the jury's verdict alone does not allow ... the judge exceeds his proper authority," said Scalia.

His opinion was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

VULNERABLE SENTENCES

The dissenters called the ruling a disaster in the making. "What I have feared most has now come to pass: Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy," said Justice Sandra Day O'Connor. She pointed to sentencing guidelines in Alaska, Arkansas, Florida, Michigan, Minnesota, North Carolina, Oregon and Pennsylvania, and said they are especially vulnerable to challenge. And beyond that, judges in many other states have the authority to increase a defendant's sentence.

What can be done? Some experts foresaw a return to the bad old days. The law could specify a punishment for a particular crime, such as five years in prison for home burglary. "Such a system assures uniformity, but at intolerable costs," said dissenting Justice Stephen Breyer, since not all burglars or burglaries are alike. Another possibility would be to return to the 1970s, when the law often called for an open-ended sentence, leaving it to a judge or a parole board to decide when the criminal should go free. Neither option--fixed sentences or open-ended prison terms--has many supporters today.

A few legal experts said they saw a way to avoid the oncoming train. They said the laws could be changed to make clear the sentencing guidelines are advice only, not a legal prescription. Scalia's opinion seemed to leave open the possibility that if the law simply set a maximum punishment for the crime, the judge would be free to sentence an offender to any punishment under that maximum. Others, however, were skeptical that this would work now. As soon as a trial judge announced he was raising the offender's sentence because the defendant had failed to show remorse for his crime, the defense lawyer could appeal the decision, arguing this "fact" should have been presented to the jury.

Perhaps the most promising option would be to try to comply with the ruling, either by having prosecutors present all the key facts at the beginning of the case or by having a separate jury hearing at the end to decide the "aggravating factors/' The Kansas Legislature ordered such a shift two years ago, and some lawyers there applaud the change.

"Things are working fine in Kansas," said Randall Hodgkinson, a public defender in Topeka, saying the Court's ruling has injected a new element of fairness, even when the defendant chooses to plead guilty.

"This makes plea bargains more accurate in that you know what you are pleading to. Before, someone could plead to one crime, but get sentenced for something much beyond that," he said.

NOT THE ONLY SETBACK

The major ruling on sentencing was not the only setback for the states in the Supreme Court's term that ended during the summer. The justices voided laws in Texas and nine other states that gave patients a right to sue their managed care plan if they could prove they were denied appropriate medical treatment. The federal law that regulates employee benefits preempts such state claims, the high court said in Aetna v. Davila.

In a California case, the justices limited the options for states to combat air pollution. States and localities may not require new buyers of buses, trash trucks and other "fleet vehicles" to choose clean-burning engines, the Court said in Engine Manufacturers Association v. South Coast Air Quality District. These state rules are preempted by the federal Clean Air Act, the high court said.

And in this term's major "federalism" case, the court in a 5-4 decision said states may be sued by disabled individuals who are unable to enter a courthouse unassisted. The ruling in Tennessee v. Lane upheld part of the Americans with Disabilities Act, but it did not decide whether disabled people can sue if they suffer discrimination in other public services, such as schools, colleges or transportation.

STATE VICTORY

The states won an important victory in a case involving financial aid and religious education. In Locke v. Washington, the Court said states need not give taxpayer's money to students who are studying for the ministry. The case posed a clash between two broad principles. One holds that states may spend public money as they see fit. The other is that the government cannot discriminate against religion. The state constitution in Washington and 36 other states forbid spending tax money to assist churches or religion.

A federal judge, however, ruled that denying public aid to students preparing for the ministry violated the First Amendment of the U.S. Constitution. Had this ruling been upheld, states that paid for some children to go to special private schools would have been required to include religious schools on an equal basis. But in a 7-2 ruling, the Supreme Court sided with the states and said they are entitled to spend tax money as they choose.

And perhaps as befits an election year when the nation is closely and sharply split, the high court was sharply split and unable to finally agree on one of its major election law cases. At issue was whether "partisan gerrymandering" is unconstitutional.

By a 5-4 vote, the Court upheld Pennsylvania's Republican-drawn election districts, even though the lines were drawn to give the GOP a 12-7 majority in its Congressional delegation. But Justice Anthony Kennedy, who cast the deciding fifth vote, said he may tip the other way in a future case if lawyers can come up with a clear standard for deciding when state lawmakers have gone too far and created a biased election system.

RELATED ARTICLE: What's ahead.

The sober and solemn Supreme Court will take up wine and marijuana when the justices return to work in October. And the outcome may affect laws in many states.

Since Prohibition was repealed in 1933, the states have had broad power to control "the transportation or importation ... of intoxicating liquors," according to the words of the 21st Amendment. But those controls have been challenged recently by wine drinkers who would like to order their favorite bottles directly from an out-of-state winery. Their lawyers say they have that right, thanks to the Constitution's protection for the free flow of interstate commerce. The wine drinkers won a challenge to Michigan's ban on alcohol importation in a federal appeals court, but the Supreme Court will hear the state's appeal in Granholm v. Heald.

The marijuana case tests the federal government's power to enforce its drug laws against severely ill people who grow marijuana at home. It too rests on the interstate Commerce Clause of the U.S. Constitution. In 1995, the high court's conservative majority struck down the federal Gun-Free Schools Zone Act on the grounds that mere gun possession did not involve interstate commerce. Earlier this year, liberal judges in California cited that ruling in saying the federal authority did not extend to mere drug possession. The outcome in the case of Ashcroft v. Raich could determine the fate of the medical marijuana laws in California and 10 other states that permit patients to use the drug to relieve pain or nausea.

The Court also will consider setting a new age limit on capital punishment. In the Missouri case of Roper v. Simmons, the justices are being asked to declare the death penalty unconstitutional for murderers who are under age 18 at their time of their crime.

David G. Savage covers the U.S. Supreme Court for the Los Angeles Times. He is a frequent contributor to State Legislatures magazine.