Judge, prosecutor mull the decision

The chief U.S. District Judge in Montana, Donald Molloy in Missoula, thinks the Supreme Court's ruling on sentencing guidelines will bring the federal court system more in line with how people believe the system should function.

But U.S. Attorney Bill Mercer in Montana thinks the decision could lead to sentencing imbalances.

For the past nine years, Molloy has sentenced federal defendants under the strict rules of mandated guidelines. Now, a divided U.S. Supreme Court has ruled that the guidelines are advisory, not mandatory.

Does that give sentencing judges absolute discretion?

"No, some discretion" is the result, Molloy said.

He thinks that will encourage prosecutors and defense attorneys to "advocate more for a position" in sentencing based on each case's unique facts, rather than following a mathematical scale.

"I think it's more what people think the justice system should be like," Molloy said.

Mercer said the guidelines were intended to bring uniformity to what a defendant might receive from judge to judge.

"Since the passage of the Sentencing Reform Act of 1984, the pre-eminent goal of sentencing in the federal criminal justice system was minimization of disparity in the sentences of defendants with similar criminal records who had committed similar crimes no matter where they committed the crime," Mercer said.

"With today's decision … the sentencing guidelines are merely advisory. Because the guidelines do not have the force of law, it is probable that significant disparity in sentencing outcomes will once again occur."

His disappointment is countered by Molloy's approval.

In July, Molloy followed the mandatory sentencing guidelines when he sentenced John Lence of Columbia Falls for bank fraud, but he wasn't happy about it.

He sentenced Lence to 21 months in prison for defrauding the former Mountain Bank of Whitefish from 1990 to 1996.

"I think he's about 21 months higher than he ought to be," Molloy said at the time. "I don't have the discretion to do what's right; I have to do what's legal.

Now, Molloy will have that discretion.

He said appellate courts will still review sentences and so judges who deviate far from the guidelines will have to give good reason for doing so.

Within two or three years, it will be clear whether judges are closely following the guideline recommendations or whether they're "all over the board," Molloy said.

He can't answer whether defendants who have already been sentenced will return to his court because of the Supreme Court ruling.

He likes the intellectual exchange that led to the ruling, he said.

"This is a new day. The Supreme Court has spoken," Molloy said.