REVIEWS CAN CONTROL JUDICIAL DISCRETION

Our position is: Leeway over federal sentencing should be tempered by
review.

The U.S. Supreme Court has reopened a debate over mandatory sentencing
by ruling that federal guidelines are merely advisory, giving federal
judges greater leeway in sentencing criminals. To some extent this is
a sound ruling. Good judges look at sentencing reports, assess the
demeanor of defendants during trial, consider aggravating and
mitigating circumstances, and usually arrive at sentences that serve
the ends of justice far better than mandatory guidelines.

Such guidelines often fail to take into account issues such as plea
agreements, past behavior, diminished capacity, family ties and
responsibilities.

A recent New York Times article by Adam Liptak also notes that
sentencing by state court judges with advisory guidelines is
remarkably consistent. In Virginia, which uses a system similar to
what has been proposed in the federal courts, judges follow the
state's advisory guidelines 81 percent of the time.

But unlike federal judges, who are unelected and have lifetime
appointments, state court judges typically face pressure from voters
and legislators. There is little to prevent a renegade federal judge
who, for example, thinks drug laws are unreasonable from routinely
giving light sentences to drug dealers. Federal sentencing disparities
also may evolve from racial, political or geographic bias.

One way to curb abuses would be to force federal judges to state the
rationale for sentencing on the record and allow sentences that
significantly vary from the guidelines to be reviewed by appellate
judges. An expedited review process need not clog the courts.

Giving judges leeway adds needed discretion to the judicial process.
Having someone looking over their shoulders will curb abuses.