FIRMER U.S. SENTENCING GUIDELINES FAN DEBATE

Since their creation in 1987, federal sentencing guidelines have
dramatically changed the way sentences are imposed in the nation's federal
courts.

Previously, judges had the final call, and their sentences varied from
courtroom to courtroom and district to district. For example, one judge
sentenced a defendant to three years and another judge chose 20 years for
the same crime.

Congress, responding to criticisms about the inconsistencies, set up strict
guidelines that judges must follow. Using a complex mathematical formula
that sets an offense level for each crime and each defendant's criminal
history, judges, prosecutors and the probation department follow a grid to
add and subtract prison time based on factors such as a defendant's
admission of guilt, the amount of money stolen, the vulnerability of the
victim and other factors. A guilty plea is rewarded, while a demand for a
trial is punished by adding several prison points.

Judges have complained that the guidelines tie their hands. This year,
Congress took steps that could bind them further.

Tucked inside a law to protect kidnapped children was the Feeney Amendment,
which could deeply limit the discretion judges still hold.

The law directs the U.S. Sentencing Commission to amend its sentencing
guidelines to reduce the number of instances in which district judges can
depart from the guidelines. Though the guidelines are fairly rigid, they
allow district judges to veer away. In extraordinary circumstances, they can
reduce the sentence or, in some cases, add more time.

The new law could remove that ability.

"Basically they are eviscerating the last bits of discretion judges have,"
said John Lentine, a defense lawyer who serves as resource liaison to the
U.S. District Court in north Alabama. "This is just obscene."

Advocates of the law say it will ensure that all federal courts across the
country treat crime and punishment in the same manner. Opponents say it
represents a frightening grab for authority, a move that will prevent judges
- - those usually in the best position to assess a case - from making any
meaningful decisions.

Seen as intimidation:

"The judicial system was designed for judges to assess each case and render
a decision," said U.S. District Judge U.W. Clemon, chief judge for the
Northern District of Alabama. But the law could strip them of that power.

"I see it as an effort to intimidate judges to the point where they will be
hand tools of the Justice Department," Clemon said.

To make matters more volatile, U.S. Attorney General John Ashcroft in July
called on all federal prosecutors to notify Washington any time a judge
issues sentences beneath the guidelines without a request by the prosecutor.

"If the judge alienates the U.S. attorney's office sufficiently he can be
summoned to appear before Congress," Clemon said. He could be removed from
the bench, or more likely blacklisted from confirmation for an appointment
to the appellate courts.

Lentine suspects the Justice Department wants to eliminate all downward
departures except those recommended by prosecutors, so that those departures
"are possible only in cases where the defendant can snitch on somebody."

U.S. Attorney Alice H. Martin said the guide-lines were designed to correct
problems in an obviously flawed system. "The system before was broken. I
believe it is more fair today."

When she was an assistant U.S. attorney in Tennessee in the early 1980s,
Martin brought a case against a secretary to the president of a bank accused
of stealing over $120,000. The judge gave the woman supervised release,
saying the bank was insured, so there was no real victim.

Martin pointed out the bank president seated in the courtroom and asked that
he be allowed to speak. The man told the judge the bank was indeed insured,
but that the deductible was larger than the amount stolen. The bank would
have to eat the loss.

The judge altered his decision, ordering the woman to spend one hour in
custody, to be served in the back of the courtroom.

"When the hour passed, he told her to leave," Martin said. "I had additional
sentencings, so she walked out of court before I did. This was common before
the mandatory sentencing guidelines were enacted."

While the guidelines may have ensured uniformity in sentencing, they may
create problems of their own, U.S. Supreme Court Justice Anthony Kennedy
said in an August speech. "Our resources are misspent, our punishments too
severe, our sentences too long."

Also in protest of the severity of the guidelines and judges' lack of
discretion, a noted New York U.S. district judge resigned his lifetime seat.

Clemon said he agreed with Kennedy. Because mandatory minimum sentences
force judges to sentence drug offenders to years in prison, inequity still
exists in the courts.

"The disparity is still there," he said.