MANDATORY SENTENCES NO MORE

Restoring 6th Amendment's Respect for Judges, Juries

At his sentencing in federal court two years ago, Freddie Booker could
expect at least 10 years in prison. A jury had found him guilty of
possessing some 92 grams of crack cocaine. Federal law calls for a 10-year
sentence, but sentencing guidelines increase the punishment to at least 17
years and a maximum of 21 years. During the sentencing hearing, prosecutors
told the judge that Booker had confessed to police to selling more than a
pound of crack in the past. Hearing that, the judge increased Booker's
sentence to 30 years, even though no jury had heard that evidence. Booker
walked out of the courtroom expecting to be in prison until about 2033.

Last week, the U.S. Supreme Court ruled that Booker's sentence was
unconstitutional.

The Sixth Amendment says nothing about sentencing guidelines. Nor does it
give judges the right to override juries at sentencing by increasing a
defendant's punishment.

Judges aren't barred from looking at prior criminal history when they
decide what punishment to mete out. But they're limited to prior sentences
resulting from convictions in court. Evidence that doesn't meet a jury
conviction's "beyond reasonable doubt" standard is inadmissible at sentencing.

The court's ruling is overdue. It restores to juries -- and judges -- the
discretion Congress took away to decide what punishment best fits what
crime. The ruling won't make too much difference for the likes of Booker.
He might still serve at least the 17 years of a minimum sentence based on
evidence on which the jury convicted him. But the ruling will make a
difference for many of the 180,000 prisoners in federal penitentiaries, and
the 60,000 sentenced to prison each year.

Last November, for example, Weldon Angelos, a 25-year-old music executive
in Oklahoma, and father of two, was sentenced to an absurd 55-year sentence
because he dealt small amounts of marijuana to an undercover police officer
- -- while wearing a firearm on his ankle. Minus the firearm, the offense
would have cost him a few years (and at most nine years if sentenced in
state court). The judge didn't want to sentence him to 55 years but was
forced to by mandatory guidelines. The second part of the Supreme Court's
ruling last week makes sentencing guidelines advisory only. That will give
judges the discretion to prevent sentences such as Angelos'.

Just as notably, it should not bring judges back to imposing arbitrary
sentences, whether they be too lenient or too harsh.

Sentencing guidelines were written with good intentions in the mid-1980s.
Until then, two different judges could impose vastly different sentences
for the same crime as long as they stayed within the range allowed by law.
The disparities could be, and often were, unfair to defendants. In 1984
Congress created the U.S. Sentencing Commission, abolished parole for
federal inmates, and developed federal sentencing guidelines that all but
forced judges to impose specific sentences. The guidelines also gave judges
discretion to increase (but not decrease) punishments should judges' own
fact-finding warrant it. There's been a lot of fact-finding on judges'
part, circumventing juries. For instance a judge rather than a jury would
decide whether a drug dealer was an "organizer" or just a street-level
seller, a difference that could add years to a sentence. Judges could also
base their decisions on hearsay and other evidence that would be
inadmissible in court.

If the sentencing guidelines' intentions were good, their motive was not
necessarily so. It was political, an attempt by Congress to look tough on
crime. Their consequence has been a harsher kind of capricious justice the
guidelines were designed to prevent. The Supreme Court's decision restores
due process while (by making them advisory) preserving the guidelines'
fairer intentions. The right balance is again between judges and juries.