LET JUDGES, NOT CONGRESS, DO SENTENCING

Let's go back a few days to the second inauguration of President George W.
Bush and tweak that solemn Capitol scene just a little.

Imagine for a moment that when Bush raised his right hand to take the oath
of office from Chief Justice William H. Rehn-quist, Rehnquist had leaned
forward to say quietly, "Sir, put your hand down, if you would. Let's make
a little change in the program. Instead of my giving you the oath of
office, let's have you give it to me. I've always wanted to be president."

Dignitaries, foreign and domestic, would shiver as whispers of Rehnquist's
coup d'oath began to spread. Protesters would stand dumbstruck. Security
forces, trained to attack, would scan the scene. "Attack, yes," their
razor-sharp instincts would tell them, "but attack whom?"

Thus would an assault by one branch of American government - the judiciary
- - on another - the executive - claim the nation's attention.

Ah, but change the setting, change the two branches of government at odds,
and a version of that "Gimme, I want it" drama has been playing for more
than two decades. Its players include some dug-in members of Congress who
like to kick dust in the eyes of judges on the federal bench.

Court Rules Twice

Welcome to the Supreme Court's two-part decision on federal sentencing
guidelines.

In two 5-4 votes, with Associate Justice Ruth Bader Ginsburg the critical
swing vote each time, the Supreme Court this month affirmed that mandatory
federal sentencing guidelines formulated by the U.S. Sentencing Commission
violated defendants' Sixth Amendment right to trial by jury. The court said
the guidelines should be treated by lower-court judges as advisory, not
mandatory.

The commission is an independent agency within the judicial branch that was
established by Congress in 1984.

Frank O. Bowman, a law professor at Indiana University, cut through the
legalese to spell it out. "This is a story about a fight between branches
of the federal government for sentencing power," Bowman told The New York
Times.

The reasons for the "fight" are obvious. No member of Congress, with the
possible exception of an obscure congressman from San Francisco or an
unknown independent from Vermont, ever staked a political future on being
soft on crime. Being hard on criminals pays off.

And, for politicians with luck, the realities of criminal sentencing - the
plea bargains, the "good time" subtracted from sentences for behaving in
prison, the paroles and other reductions - never catch up with the tough
public rhetoric.

Neither do the realities of who is being sentenced.

The two-part Supreme Court decision came on a case that involved
differences in sentences imposed on Freddie J. Booker, convicted on drug
charges in federal court in Madison, Wis., and Ducan Fanfan, convicted in
federal court in Portland of distributing 500 grams of cocaine.

The nature of their offenses shouldn't surprise us. According to a
comprehensive review that the Sentencing Commission issued in November,
"Drug trafficking offenses have comprised the largest portion of the
federal criminal docket for over three decades."

The number of offenders "has grown every year, reaching 25,835 offenders in
2002, or 40.4 percent of the total criminal docket."

Economic offenses - larceny, fraud and other white-collar crimes - come in
second, followed by immigration and firearms offenses.

At best, the guidelines play a limited role in keeping the kind of killers
on "Law and Order" off the streets.

"Unlike the state courts," the Sentencing Commission reported, "the federal
courts sentence relatively few offenders convicted of violent crimes." In
2002, for instance, "murder, manslaughter, assault, kidnapping, robbery and
arson constituted less than 4 percent of the total federal criminal docket."

All of which suggests there's not only room for judicial discretion in
imposing sentences on those convicted in federal courts, but a genuine need
for thoughtful analysis and discretion as well.

Whenever a person is nominated for a judicial post in Maine, the
Legislature's Judiciary Committee listens carefully to testimony about the
nominee's "judicial temperament." Is this a person who can carefully,
coolly - judiciously - assess the law as it applies to the conduct of a
case and, if required, to a defendant's sentence? On that weighing of
temperament, the fate of a governor's nominee may well be decided.

Yet the Sentencing Commission, in reviewing why Congress established
mandatory guidelines two decades ago, treats judicial temperament almost as
a malady to be eliminated.

Range Of Penalties

Before mandatory guidelines existed, the commission said, "federal crimes
carried a broad range of penalties and federal judges had the discretion to
choose the sentence they felt would be most appropriate. They were not
required to explain their reasons for the sentence imposed and their
sentences were largely immune from appeal."

At best, that's a reasonable argument for encouraging federal judges to
cite clearly the reasons for sentences they impose, but it is not a
compelling argument for chaining them to mandatory guidelines.

Instead, members of Congress should exercise some judicial temperament of
their own in the session ahead.

"The professional judiciary haters in the Congress are going to have a lot
of grist for the mill," Rep. Adam B. Schiff, D-Calif., predicts.

But calm voices might still prevail. "Congress should resist the urge to
rush in with quick fixes that would only generate more uncertainty and
litigation and do nothing to protect public safety," Vermont Sen. Patrick
Leahy, the Judiciary Committee's ranking Democrat, told the Times.

To be trusted, courts must stand above politics. Just think about Bush and
Rehnquist on that Capitol podium again.