LET JUDGES USE JUDGMENT

In the long-awaited Blakely decision, the Supreme Court ruled federal
judges no longer have to follow the rigid sentencing "guidelines" first
adopted in 1987.

The court's bold decision was promptly derided by those inclined to equate
justice with unbridled prosecutorial power and endless prison sentences.

A Wall Street Journal editorial, "Sentenced to confusion," imagined "the
guidelines deserve at least part of the credit for the lower crime rate the
country is currently enjoying." Accompanying charts purported to relate the
nation's rising prison population with the decline in violent crime.

The trouble with trying to link sentencing guidelines to the total prison
population, however, is that federal guidelines only apply to federal
sentences.

Of the 2.2 million Americans in prison or jail at the end of 2003, only 7.8
percent were in federal prisons.

The trouble with trying to relate federal guidelines to violent crime is
that the federal government rarely has jurisdiction over such crimes.

Former federal prosecutor Bruce Fein has written that "countless murders
have been avoided, endless rapes prevented [and] innumerable robberies
thwarted" due to federal sentencing rules.

But it is local cops, not federal agents, who police our streets and arrest
those guilty of violent crimes.

The feds are rarely involved except when national banks are robbed or the
crimes occurred on federal property or crossed state lines.

Homicide, aggravated assault and kidnapping accounted for only 3.3 percent
of the 180,318 in federal prisons at last count.

Robbery (of banks) accounted for only 2.6 percent of federal cases
sentenced in 2002. The fact so few federal prisoners were involved in
violent crimes explains why 58 percent of federal offenders can be safely
kept in minimum-security or low-security facilities. About a fifth of
federal sentencing involves immigration violations, and another fifth is
white-collar crime, but federal sentencing is overwhelmingly about illicit
drugs.

The percentage of federal prisoners incarcerated for drug offenses jumped
from 27.6 percent in 1984 to 60.7 percent by 1995, partly because the
guidelines mandated long prison sentences.

In a recent marijuana case in Utah, a first-time offender trapped in a
federal sting was sentenced to a mandatory 55 years because he refused a
plea bargain and was therefore hit with 20 counts. The guidelines pretend a
gram of heroin is equivalent to a kilo of marijuana, so heroin (which is
easier to flush) accounted for only 7.1 percent of federal drug busts in
2002, compared with 28.9 percent for marijuana.

Gene Healy's new book, "Go Directly to Jail: The Criminalization of Almost
Everything," notes there are now more than 4,000 federal offenses on the
statute books, up from 3,000 a decade ago, and "thousands more buried in
the Code of Federal Regulations." Despite this rush to federalize state
crimes, and to criminalize torts and regulatory infractions, drug offenders
nonetheless still account for more than 54 percent of federal prisoners.

The 1,823-page Federal Sentencing Guidelines Manual sets "base offense
levels," for everything from tax evasion to possessing an eavesdropping device.

The higher the number, the more time in prison.

Rolling back the mileage on a car's odometer is only a Level 6 offense (no
more than 18 months). Mishandling pesticides is Level 8 but jumps to Level
24 if "knowing endangerment" was involved. "Engaging in a gambling
business" is a Level 12 offense, unless done by a state government or
Indian tribe. "Making an obscene phone for commercial purposes" (phone sex)
is a Level 12 offense but Level 16 (up to 57 months) if the call was
between 6 a.m. and 11 p.m. Drug charges can reach Level 38 — 20 years
to life.

Before these supposedly brilliant guidelines existed, the Wall Street
Journal complains, there were "disparities" in sentences.

But offenses and offenders are never exactly the same, which is why we
should let judges be judges.

If we just wanted to eliminate disparities, everyone found guilty of any
victimless nonviolent crime could simply be sentenced to 55 years.

The Journal thinks Congress may see the Supreme Court ruling as "a power
grab by the judiciary." Most federal judges saw sentencing guidelines as a
power grab by the legislative branch.

As former Attorney General Ed Meese explained, "A major cause of the
federalization of criminal law is the desire of some members of Congress to
appear tough on crime, though they know well that crime is fought most
effectively at the local level."

Delegating formidable authority to a new Sentencing Commission allowed
federal politicians to politicize the sentencing process by calling on the
commission, through legislation or jawboning, to impose longer and longer
sentences for more and more federal offenses. Conservative members of
Congress could more easily attract publicity and votes by demanding longer
sentences for obscenity or drugs.

Liberals could demand longer sentences for antitrust violations or
despoiling the environment.

In the process, any right to a trial where defendants may confront accusers
and must be proven guilty beyond reasonable doubt has almost vanished at
the federal level.

The percentage of federal cases going to trial fell from 14.6 percent in
1991 to 2.9 percent in 2002. All but a handful of federal cases are now
settled with a plea bargain and sentenced on the basis of a probation
officer's report.

Strict bureaucratic sentencing rules, combined with vague federal laws and
regulations, are a key reason federal prosecutors no longer have to bother
proving their cases to a jury. Federal prosecutors have been able to coerce
pleas by threatening that if the case goes to trial they will charge
numerous vaguely defined offenses and, in many cases, "forfeit" the accused
person's house, car and bank account while waiting for a trial.

With the risk of facing multiple counts adding up to decades of mandatory
prison time, defendants with any sense of the way this game is played have
no practical choice but to plead guilty to a greatly reduced charge with a
reduced sentence for "cooperation."

If a misleading letter went through the mail, for example, that could mean
30 years for "mail fraud." If hearsay evidence showed two people were
involved in something (which need not be a crime), such a "conspiracy"
could add five more years.

Accusations of being a "racketeering influenced corrupt organization"
(RICO) have been applied to everything from anti-abortion groups to a
chicken company.

"Obstruction of justice" is a favorite catch-all, since any remarks short
of a full confession might qualify. Section 1001 of the U.S. Code says any
person otherwise innocent of any crime can be sent to federal prison for up
to five years for concealing a "material fact" or making a "fraudulent"
statement in a conversation with any federal official or congressional
staffer investigating anything, even though the accused was not under oath
and not read his or her rights.

Section 1001 is one of dozens of accusations that can trigger asset
forfeiture (homelessness and poverty) without trial or admission of guilt.

As Heritage fellow Paul Rosenzweig explained, "Broad and overlapping
statutes with minimum obstacles to criminalization and harsh penalties...
induce guilty pleas and produce high conviction rates, minimizing the costs
of the cumbersome jury system.... And in the absence of any judicial check
on this legislative trend, the result is a wholesale transfer of power from
elected legislative officials to prosecutors who, in many instances, are
unelected and not responsible to the public."

The righteous Supreme Court decision to curb the politicization of federal
sentencing, moderate prosecutorial immoderation and restore judicial wisdom
to the federal bench was recently described by the Boston Globe as "a
defeat for the U.S. Justice Department." But it was a magnificent victory
for justice.