GANGBUSTERS AND COURT-BUSTERS

Congress Muscles In On Crime -- And Robes

In three rulings last year, the U.S. Supreme Court scaled back the use of
federal sentencing guidelines that had been in place 21 years.

The rulings required that sentences rely on juries and judges, leaving
guidelines in an advisory role only. The rulings didn't simplify a
complicated system.

But they pushed back the influence of Congress (and political moods) on
sentencing by reasserting the federal courts' independence.

Congress didn't take it well, Florida's Tom Feeney least of all: "The
Supreme Court's decision," the Ovideo Republican said, "to place this
extraordinary power to sentence a person solely in the hands of a single
federal judge -- who is accountable to no one -- flies in the face of the
clear will of Congress." Feeney's rampant exaggerations masked his biggest
resentment. Last year, he led the effort to require the Sentencing
Commission to give Congress the names of federal judges who didn't follow
the guidelines, an extraordinary power play designed to intimidate the
judiciary.

The Supreme Court's rulings essentially nullified that act. But it was
obvious then that Congress would strike back.

So it has. The House of Representatives on Wednesday approved a bill that
increases prison sentences for gang members and redefines gangs to mean any
three people (instead of five) who have committed two or more crimes
together and, at least, one violent crime.

Two other bills would increase mandatory minimum sentences for drug dealers
and impose new minimum sentences for people who commit crimes in
courthouses. In all, the package both further expands an already-bulging
list of federal crimes while rekindling the sentencing issue.

Sentencing guidelines are not necessarily bad. They're founded on the
reasonable assumption that it's better to have relatively uniform sentences
than leave the severity of punishment entirely to judges' predilection. Why
should a judge in Florida hand down a sentence three times as stiff as one
handed down by a judge in Iowa for the same offense? But sentencing
guidelines are a political animal.

They have no claim to be universally just, either.

They're the product of political moments, passions, prejudices. Politicians
used the sentencing guidelines as a means of looking tough on crime.

The so-called crack epidemic of the 1980s, for example, which greatly
influenced the severity of sentencing guidelines, has waned, but the
sentences it inspired disproportionately influenced stiff punishments for
small-time drug users.

Gang violence is becoming the crime issue of the moment and may end up
falling just as disproportionately on small-time offenders.

The numbers aren't clear, because they depend on hazy definitions of what
makes a gang and what constitutes a gang-related act. Congress'
redefinition of gang violence will immediately result in a statistical
spike in criminal gang activity not related to gangs previously. But does
shifting crime numbers from one column to another really mean that gang
violence has increased?

The answer may not be as clear as Congress' motivation to use gang violence
as a means to more political ends. Members of Congress are not only looking
for new ways to look tough on crime, but to look tough on the judiciary,
too. The gang bill and the two other anti-crime bills let them do both by
ramping up minimum sentences and sending notice that Congress will still
play a role in telling courts not just who to punish, but how much.

The irony is that the Sentencing Commission, though it was created by
Congress, disagrees with minimum sentences.

It considers them inefficient precisely because their dragnet approach
ignores individual, mitigating circumstances and ends up overloading both
the court and penal systems.

But just as congressional anti-crime sprees are often less about reducing
crime than about appearing to be tough on crime for election season's
spotlight, fresh mandatory sentences are less about deterring crime than
about posturing against the judiciary. Otherwise, the bills wouldn't be so
bare on constructive initiatives such as gang intervention programs on the
streets, reform programs for gang members in prison or transition programs
for felons leaving prison. Clearly, the will of Congress isn't there.