RETHINKING SENTENCES

This week's U.S. Supreme Court's two-part ruling -- giving judges back
the discretion they lost when Congress adopted mandatory minimum
sentence guidelines 21 years ago -- is cause for celebration.

The tug of war between Congress and the judiciary over which branch
ultimately controls sentencing will go on, but there's now hope of
eliminating some clear injustices.

Every year, 60,000 people are sentenced in federal courts. And in the
wake of this week's ruling, thousands are likely to press claims that
their sentences under the guidelines were unduly harsh and that, as
the Court's majority found, they were punished for allegations that
they never had a chance to defend themselves against before a jury.

The fix the Supreme Court has ordered calls for the sentencing
guidelines to remain, but only as recommendations, not requirements.
In other words, judges must take them into account, but on appeal,
sentences can be reviewed for their reasonableness.

A foolish uniformity isn't fair. Yet that is what the guidelines had
been producing. And that is why a federal judge in New York resigned
in protest in 2003, calling the guidelines "unnecessarily cruel and
rigid."

In hopes of fixing one problem -- wildly disparate sentences for the
same crimes in different jurisdictions in the war on drugs -- Congress
created another by authorizing the guidelines. The rigid numerical
scores they required didn't just reel in the big fish that were the
target of tougher sentencing, but also thousands of small-fry and
first-timers, whose excessive sentences have imposed great expense on
taxpayers and great frustration on judges, who were prevented from
exercising reasonable discretion. Under the guidelines, for example,
judges could impose longer sentences than set by a jury, but had no
power to lower them, regardless of any new or mitigating facts.

The tough-on-crime crowd in Congress, and those who invest so much
energy in demonizing so-called activist judges, may not appreciate the
opportunity the Supreme Court has given them.

Instead of rushing into a turf battle, they should recognize that this
is a good time for thoughtful deliberation about the human, social and
financial costs that inflexible mandatory minimum sentences have inflicted.