MANDATORY MINIMUM CONFUSION

WHEN the Supreme Court seeks to clarify matters, to find order out of
chaos, it sometimes succeeds in making things worse.

That was certainly the consequence of Roe v. Wade, a 1973 decision that
Justice Harry Blackmun (who wrote the opinion) believed would settle the
issue of abortion once and for all. Instead, by choosing to circumvent the
political process and invent a novel right to privacy, the court created
the modern anti-abortion movement. The intent of Roe may well have been
benign -- to reserve the abortion option in law -- but does anyone believe
that it settled the issue?

The same, unfortunately, may well be said about its 5-to-4 rulings last
week on mandatory federal sentencing guidelines.

To begin with, as it sometimes does, the court issued a relatively
ambiguous message. It struck down the mandatory federal guidelines, which
have been in effect since 1987, as unconstitutional -- a welcome
development. But it also produced a second ruling to the effect that judges
should regard those guidelines as advisory, instructing them to follow
them, as much as possible, in meting out punishment. Some judges will feel
obliged to stick to the guidelines, but others will not.

The result? No one is happy. The people who like mandatory minimum
sentences are furious that federal magistrates will now have discretion,
and sentences will be disparate in different courts and jurisdictions. A
crime that may strike a federal judge in Texas as serious business may seem
less onerous to a colleague in New York, or vice versa. Those disparities
will lead to confusion and uncertainty - and, in due course, to a
legislative remedy.

Alas, legislative "remedies" are often the political equivalent of patent
medicine: They sound good, and appeal to customers, but are often
ineffective, and sometimes worse than the malady. That is why opponents of
mandatory minimum sentences are nervous as well. All the arguments that
prompted Congress to act 18 years ago will be revived. They might well
yield new sentencing laws more draconian than the last, and crafted to
satisfy the narrow court majority.

Critics of the court will complain that the absence of mandatory guidelines
will lead to chaos and disparity, but that was not what prompted Congress
to act in the first place. It is true that certain crimes have been treated
more harshly in certain circuits than others, but Congress was inspired
exclusively by the notion that certain judges were too lenient in their
sentences.

Like welfare Cadillacs and Pentagon toilet seats, lenient judges are a
popular public villain -- even if evidence for their existence is fleeting.
The truth is that, for the most part, the practical consequence of
mandatory guidelines has been two decades of unduly harsh, extended prison
terms for nonviolent offenders convicted of drug crimes.

That the American prison population has exploded in recent years is due not
to superior police work, but to demographic changes and cruel sentences for
transgressions that are difficult to classify as serious offenses. Or put
another way, we are filling up the federal prisons with many people who
probably shouldn't be imprisoned at all.

I am not, of course, talking about big-time drug dealers, or people who
commit violent crimes associated with trafficking. But are we entirely
comfortable, as a society, with incarcerating people -- for 10, 20, 30
years -- who are basically addicted to opiates? It would not occur to us to
throw smokers behind bars -- not yet, anyway -- or imprison athletes who
use steroids. But the impulse to punish junkies, small-time dealers and
casual consumers of "recreational" drugs is grounded in social attitudes,
not the fight against crime.

Which leads to one uncomfortable truth: For some things, there is no
absolute legislative or judicial solution. I can appreciate the anger and
frustration of those who deplore judges who might seem too solicitous
toward offenders. And it would be nice to have some measure of consistency
in justice. But a daily scan of the newspaper reveals routine disparities
between crimes and sentences, in the same place, and the justice system
will continue to treat criminals one way in New York and another in Texas.

That is not, perhaps, ideal, but when Congress proposes absolute
consistency it "solves" one dilemma and produces two big problems.

The first problem is that we are a federal system, and when congressional
guidelines trump local judgment, yet another prerogative of the states
disappears. Problem number two is that mandatory minimums, in a free
society, turn our judicial system into a police state, and take problems
best left to judges and courts and put them exclusively in the hands of
politicians.