ONE-SIZE-FOR-ALL SENTENCING A BAD FIT FOR JUSTICE

Six months after the U.S. Supreme Court freed judges from the confines of
mandatory sentencing rules, the nation's top lawyer is lobbying for their
reinstatement.

In a speech to a conference of the National Center for Victims of Crime
Tuesday, Attorney General Alberto Gonzales called for requiring federal
judges once again to adhere to mandatory minimum prison sentences. Gonzales
argued that uniform sentencing policies are the only way to ensure judicial
consistency across the nation's courtrooms.

The January Supreme Court ruling meant federal judges no longer are
required to follow sentencing guidelines but can now treat them merely as
recommendations. The change allows judges to use their discretion in
weighing the facts of each case in deciding whether an individual's
sentence should be more or less severe than suggested by the guidelines.

While some hailed the high court's ruling for giving judges back their
judgment, Gonzales contends the change has created imbalance in the
judicial system and points to cases where similar crimes received vastly
different sentences. To remedy this situation, Gonzales is urging Congress
to give serious consideration to reinstate minimum punishments for federal
crimes.

The shrill tone of urgency in Gonzales' comments might lead some to believe
a sentencing crisis had broken out in the nation's courtrooms with judges
giving dangerous criminals wrist slaps instead of prison time.

This is hardly the case.

In fact, the vast majority of judges appear to be treating their new
sentencing freedom with due caution. The U.S. Sentencing Commission found
that 88.6 percent of the federal sentences handed down since the Supreme
Court ruling were within the range set by the sentencing guidelines,
according to an Associated Press report.

Of the 14,572 sentences imposed during this time, 1,458 were below the
recommended range and 201 were more severe. This is far from evidence of a
judicial revolution.

Not everyone shares Gonzales' desire to return to past sentencing
practices. Among those urging caution are former Attorney General Edwin
Meese, a Republican, and former Deputy Attorney General Philip Heymann, a
Democrat.

We have no doubt that supporters of mandatory minimum sentences have a
collection of anecdotes where judges have opted for lenient punishments
with little rhyme or reason. These may be unfortunate, but they do not mean
the system is fatally flawed.

Keep in mind, there were many cases under the previous rules where those
convicted of lesser crimes were ensnared by rigid sentencing policies and
received unduly harsh sentences as a result.

One of the worst instances of this miscarriage of justice is now before a
federal appeals court. Last fall, a Utah man was sentenced to 55 years in
prison without parole for a first offense of selling marijuana and
possessing a concealed firearm. At the November sentencing hearing, the
judge called the punishment "unjust, cruel and even irrational" but said he
had no other choice under the mandatory sentencing rules.

The trial judge was not alone in his outrage over the required sentence.
More than two dozen former federal judges and U.S. Attorneys filed a
"friend of the court" brief in this cause arguing that the sentence is
grossly disproportionate to the crime and violates the constitutional
prohibition against cruel and and unusual punishments.

This is just one case, but it clearly highlights the inherent flaw in
imposing one-size-fits-all rules on our courts. No two crimes or criminals
are alike, and it is a disgrace to this nation's abiding faith in justice
to treat them the same. We must continue to give our judges the freedom to
exercise their judgment in assessing every case and handing down
proportionate sentences.