JUSTICE & MERCY REUNITED

A Supreme Court ruling last week opens the door for judges once again to
use their discretion in sentencing criminals. It's a welcome decision. In
recent decades, Congress and state legislatures have deeply marred American
justice by bleeding mercy out of the system.

The court ruled that judges can depart from the strict, by-the-book
application of federal sentencing guidelines. Judges will be allowed to use
common sense and proportion so that obviously unfair sentences are not
handed out.

It's about time. A get-tough-on-crime approach by legislators has become an
election-season ritual, as politicians compete to see who can jack up the
length of sentences the highest, while taking pains to bar judges from
adjusting sentences in light of extenuating circumstances.

The stunt helps secure reelection for the pols, who rarely stick around to
take credit for the inevitable legal disasters that result.

New York's failed experiment with the Rockefeller Drug Laws could have been
avoided had judges had more discretion to limit or amend sentences.

First-time offenders, junkies and unwitting drug couriers would be
sentenced to rehab or probation instead of a mandatory 15 years in prison.

The worst injustices stem from states' three-strikes laws, which
mechanically impose 25 years to life for committing three crimes. In
California, a heroin addict named Leandro Andrade is sitting behind bars,
serving 50 years to life in prison for stealing a batch of videotapes from
a Kmart, then returning to the same store two weeks later to shoplift five
more tapes. The value of the final heist was $84.70 - but Andrade had been
convicted of two burglaries 20 years prior, so the three-strikes law kicked
in and he got 25 to life for each of the two petty shoplifting charges. By
law, the judge could do nothing to adjust the absurd sentence.

In another California case, Santos Reyes was caught at a Department of
Motor Vehicles office using a cheat sheet and immediately admitted to
taking the written portion of a driving test for an illiterate cousin.
Lying to the DMV is a felony, and a probe into Reyes' background turned up
two other strikes: a robbery 10 years earlier and a burglary committed as a
juvenile. Reyes is currently serving 26 years to life because the judge was
barred from cutting him a break.

In Pennsylvania, a man named Nicholas Yarris was wrongly sent to Death Row
for a 1981 rape and murder, and briefly escaped for 25 days in 1985. Yarris
eventually was exonerated of the murder and rape and freed, thanks to DNA
evidence, and he's suing the state for wrongful imprisonment.

But Yarris' prison break and a string of crimes he committed while on the
lam leave him vulnerable to the state's inflexible three-strikes law.

"Because of those convictions, if I'm arrested for stealing a slice of
pizza, they have the right to take the rest of my life from me - so I'm
moving to England," Yarris recently told The Associated Press.

His choice of a new homeland is sadly apt: Allowing judges to exercise
discretion in sentencing has its roots in ancient English legal traditions.

The Supreme Court upheld the constitutionality of three-strikes convictions
in 2003, when it voted to leave Andrade, the Kmart desperado, behind bars
for at least 50 years. In that case, Justice Clarence Thomas pointedly
noted that no amount of prison time in such cases should be considered
unconstitutionally cruel and unusual, because the 18th-century framers of
the Constitution would not have thought so.

Fortunately, Thomas was on the losing side of last week's 5-to-4 decision,
which was grounded in the realities of this century.

But congressional conservatives are loudly vowing to rewrite federal laws -
in time for the 2006 elections, no doubt - to try to handcuff judges again.

After all, some of those black-robed crazies might not understand the
importance of giving a junkie 50 years behind bars for shoplifting.