MORE DISCRETION FOR JUDGES

The Supreme Court ruled appropriately that federal sentencing
guidelines violate the right to a jury trial. Congress should resist
the urge to overreact.

The U.S. Supreme Court has fundamentally changed the way federal
judges determine sentences, ruling they no longer are required to
follow sentencing guidelines that have been in place for two decades.
That additional discretion is welcome because the guidelines often
have resulted in unduly harsh sentences, and Congress should resist
demands by some conservative Republicans to reinstate rigid controls.

The court began moving down this road when it overturned the state of
Washington's sentencing guidelines last year and concluded they
violated the Sixth Amendment right to a jury trial. Now prosecutors
often charge defendants only with the crimes that can be most easily
proven. Then they present the judge at sentencing with other
allegations that were not presented to the jury, and a judge can use
those allegations to justify a tougher sentence.

For example, in the case considered by the Supreme Court, a prosecutor
offered evidence to the jury that a defendant possessed 92.5 grams of
crack cocaine. The defendant was convicted of possessing more than 50
grams. But at sentencing the judge concluded the defendant had 658.5
grams. The defendant was given a 30-year sentence based on the larger
amount.

In a 5-4 opinion, the Supreme Court ruled that federal sentencing
guidelines violated the right to a jury trial by allowing such
situations to occur. It concluded no fact considered by a judge may
result in increasing a defendant's sentence beyond what is supported
by the jury's conviction. But even as they eliminated that judicial
flexibility, the justices provided judges with far more independence
by making the sentencing guidelines discretionary rather than mandatory.

Justice Ruth Bader Ginsburg gets much of the credit. She switched
sides and joined the four justices who dissented in the first part of
the ruling to form a different 5-4 majority that ruled the guidelines
must be consulted but are only advisory. While that may result in
different sentences by different federal judges for similar crimes,
judges no longer will be rigidly bound by guidelines many considered
to be too harsh - particularly for first-time drug offenders. It will
be up to appellate courts to see that the new flexibility does not
result in wildly different sentences, the very problem the guidelines
tried to correct.

This will not be the final word. The court opinion will trigger
congressional hearings. The fight between the legislative and judicial
branches to set the rules for punishing criminals will begin anew, and
conservatives will complain about lenient judges and demand mandatory
penalties. Rep. Tom Feeney, R-Oviedo, who has never accepted the idea
of an independent judiciary, already has overreacted by calling the
court opinion an "egregious overreach." But Congress should move
slowly and use this as an opportunity for a thorough review of both
mandatory minimum laws and sentencing guidelines.

The Supreme Court correctly returned fact-finding to the jury and
provided more flexibility for judges to put those facts into context
and impose appropriate sentences. Congress should see how it works,
avoid the temptation to overreact - and drop the tough-on-crime
chest-thumping.