MANDATORY SENTENCES ARE OUT

The U.S. Supreme Court didn't do badly last week in its two-part decision
on mandatory federal prison sentences.

On the one hand, by a 5-4 vote, it found the mandatory sentences to be
unconstitutional because judges acting alone do the "fact finding" in
certain details that inform the sentences, "such as the amount of drugs
involved in a crime, the number of victims in a fraud or whether a
defendant committed perjury during trial," wrote Associated Press writer
Gina Holland.

That violates the Sixth Amendment by intruding on the work of the jury, the
majority found.

Then, in the second part of the ruling, Justice Ruth Bader Ginsburg
switched sides to support the sentence guidelines -- but as advisory only
on judges, rather than mandatory.

Supporters of mandatory sentences, including the U.S. Justice Department,
say they have brought justice through uniformity to courtrooms around the
country and helped drive crime to a 30-year low. But judges have complained
that the rigid formulas sometimes force them to impose harsher terms than
called for by the circumstances -- a complaint predictably joined by trial
lawyers.

The Tribune agrees that justice should always be tempered with mercy, where
applicable, and also by common sense. To the extent that mandatory
sentences removed the possibility of these coming into play, we are opposed
to them. We are also reassured that the two most conservative members of
the high court, Justices John Scalia and Clarence Thomas, voted against
them -- even as advisory.

Critics of the decision are correct that it opens the floodgates to appeals
by thousands of inmates sentenced under the guidelines in the past two
decades. That may be inconvenient, but it is preferable to leaving old
wrongs uncorrected and working new wrongs into the indefinite future.

Besides, the court anticipates that Congress -- which gave us the original
guidelines -- will come up with something to take their place.

"Ours, of course, is not the last word," wrote Justice Stephen Breyer.
Congress "is equipped to devise and install, long-term, the sentencing
system, compatible with the Constitution, that Congress judges best for the
federal system of justice."

Could the change be as simple as making the jury the finder of facts in
those details that trigger sentence lengths? Whatever, the chairman of the
Senate Judiciary Committee, Sen. Arlen Specter, promises "a (new)
sentencing method that will be appropriately tough on career criminals,
fair and consistent with constitutional requirements."

Until this is delivered, conscientious judges should do their part by
continuing to be "advised" by the old guidelines, even if they cannot be
bound by them. For, if the guidelines have made a poor fit in some
individual cases, they have doubtless been quite suitable in others. We
should be able to trust a judge to know the difference.