PUT THE JURY BACK IN THE JURY SYSTEM

One of the most important principles of our justice system is this: In
criminal cases an individual on trial has the right to have a jury of his
peers standing between him and the power of the government.

Thankfully, that principle formed the foundation of the Supreme Court's
decision this month to downgrade the power of federal guidelines to dictate
the sentences imposed on criminals.

That's why Congress ought to refrain from any hasty reaction to the court's
decision.

The ruling, prompted in part by a case from a Madison courtroom, placed in
doubt the amount of influence the sentencing guidelines will have in the
future. Thus, it invited lawmakers to rush in with legislation to fix the
constitutional problems the court identified and to restore federal
authority over sentences. In fact, the court's majority opinion noted that
"the ball now lies in Congress' court."

But lawmakers would be smart to hold that ball and watch how the decision
is applied by judges and juries. The ruling was a victory for the jury
system. That victory should stand.

The question the Supreme Court took up had roots in the development of the
sentencing guidelines back in the 1980s. Congress wanted to bring
uniformity to sentencing to address complaints that two people convicted of
the same crime could receive widely disparate sentences, depending on where
the cases were prosecuted. But Congress also wanted to get tough on crime
in response to complaints that "liberal" judges were letting criminals off
with light sentences.

So Congress created a U.S. Sentencing Commission, which developed
guidelines establishing ranges of sentences to apply throughout the country
and required judges to boost criminals into higher ranges based on facts
never considered by the jury.

The result was a rigid system that left little room for mitigating
circumstances and forced judges to knowingly impose unjust sentences.
Moreover, the guidelines created a conflict between the get-tough- on-crime
mandate and the constitutional right to trial by jury. That conflict
reached the Supreme Court in a case that combined two federal sentencing
cases, one from Maine and one from Wisconsin.

In the Wisconsin case, a federal jury in Madison found Freddie Booker of
Racine guilty of possessing and distributing more than 50 grams of cocaine
base. Judge John Shabaz, acting according to the sentencing guidelines,
considered other facts, never put before the jury, to increase Booker's
sentence by more than eight years. Those facts included Shabaz's finding
that Booker committed perjury during the trial and Booker's admission that
he had sold additional cocaine.

Booker is a drug dealer unworthy of sympathy. But his case raised an
important question. Isn't the accused's constitutional right to trial by
jury violated if the sentence is based on facts the jury never heard?

Yes, decided the Supreme Court.

In a second opinion in the same case, the court decided against overturning
the guidelines altogether. Instead, the court ruled that the guidelines
could remain as advice to judges, who could use their own discretion to
increase or reduce sentences.

The second opinion raises the risk that some judges might run amok with
their discretion. But clearly, the discretion of a judge who has presided
over the case will usually be preferable to dictates imposed by lawmakers
from afar.

Congress may eventually need to clarify the role of the guidelines. But for
now, lawmakers should accept the court's decision to rein in their
authority over judicial sentencing.