ALLOW FEDERAL JUDGES DISCRETION IN SENTENCING

The U.S. Supreme Court's 5-4 decision striking down federal
criminal-sentencing rules was a welcome step toward restoring judges'
discretion and flexibility. But the ruling also threw gasoline on a
smoldering dispute between Congress and the federal courts.

The court declared that sentencing "guidelines" created by Congress in 1987
violate criminal defendants' Sixth Amendment right to trial by jury. The
ruling cheered federal judges who have chafed under the rigid rules. At the
same time, the court invited Congress to come back with something even
worse. History shows that lawmakers will be only too happy to oblige.

The so-called guidelines - in fact mandatory rules written by a sentencing
commission - prescribed uniform prison sentences for federal crimes.
Sentences were based on a mathematical formula broken down into six-month
increments that factor in the myriad details of a particular crime. Those
factors - whether a gun was used, the amount of illegal drugs involved, the
defendant's criminal history - could add or subtract years in a prison
sentence.

The court found the sentencing rules unconstitutional because judges
factored them into the calculation after conviction. The factors weren't
proved before a jury, as explicitly required by the Sixth Amendment. On
this point, the court was exactly right: Under the rules, prosecutors could
introduce a long list of "facts" in the post-conviction sentencing process
that could double a convict's time served in prison.

That left the court to decide what should guide judges. Dividing along a
different 5-4 fault line, the court said the sentencing guidelines are, in
fact, just guidelines. Federal judges are free to apply them or not, and
the question of whether they get it right will be determined by federal
appeals courts.

Although that makes sense, it is not going down well with members of
Congress who don't trust federal judges to be tough on criminals. They have
a simple solution: Enact more mandatory minimum sentences that would
completely tie judges' hands.

Thus, the sentencing ruling is certain to aggravate the battle between
Congress and the courts over which side has the upper hand in criminal
sentencing.

The reality, however, is that in creating the guidelines, Congress
transferred the real power to federal prosecutors: Ninety-seven out of 100
federal criminal defendants plead guilty in deals cut with U.S. attorneys
to avoid risking even longer sentences. Thus, career prosecutors make
critical decisions in the vast majority of cases before they get to the
courtroom. And, unlike federal judges, U.S. attorneys are not insulated by
lifetime tenure from shifting political winds.

The federal sentencing process has put more than 175,000 men and women in
federal prisons. Many of them, convicted of low-level drug crimes, will
spend 20 or 30 years behind bars.

There are no simple fixes for this badly broken system. A better approach
would be for Congress to set upper and lower limits for prison sentences
and leave it to the judges who are closest to each case to make the right
decision. For now, Congress ought to leave things alone and see how the
process works under the court's approach.