RETHINKING CRIME AND PUNISHMENT

Ready or not, a substantial change is coming to many of the nation's
state and federal courtrooms.

The U.S. Supreme Court - in a pair of decisions, one of which came
just last week - said federal and state judges can no longer lengthen
a criminal defendant's sentence based on evidence that was not
presented to a jury. Now, if prosecutors want to ask for more time
because a defendant was a criminal ringleader, a drug abuser, a
wife-beater or a tax cheat, they have to prove those things to a jury.

The only exception: Judges can still consider a defendant's past
convictions in deciding an appropriate punishment without running them
by a jury first.

Whether the high court's decision is a good change or a bad one
remains to be seen, and might depend, in part, on how it is
implemented. If it leads to a return to sensible sentencing discretion
for judges, that's a plus. Judges should be able to give defendants
longer or shorter sentences based on their crime, their remorse and
other facts specific to a single case.

The Supreme Court first waded into the sentencing debate last summer
with a ruling in a Washington case that had a ripple effect across the
nation. Tennessee was among the states that suddenly found its method
for sentencing criminals under scrutiny. As a result, the state
legislature is likely to tinker with the sentencing code this year.
Some prosecutors are advocating a return to jury sentencing - a system
that works just fine in Virginia.

In the meantime, Tennessee prosecutors and judges are coping with the
high court's ruling by holding two-part trials. One part is to
determine guilt; one part is to decide which aggravating factors apply
in the case and should lead to a heftier sentence. It's a lengthy and
cumbersome way to go, but one that complies with the court ruling.

Federal judges could institute the same type of two-part proceedings
on the heels of last week's ruling that came close to dismantling the
two-decades-old federal sentencing guidelines. The guidelines have
generated many complaints over the years, including an outcry against
mandatory-minimum sentences in drug cases that have meant lengthy
prison terms for some peripheral players in the nation's illegal drug
trade.

But this ruling doesn't do away with mandatory minimums, which are not
always fair and might need to be revised. Instead, it might make it
harder for prosecutors to seek longer prison terms for those who truly
deserve them.

Congress might weigh in on the federal sentencing issue later this
year. Meanwhile, federal sentencing guidelines are now advisory,
rather than mandatory. It might be best to keep them that way.

The guidelines were meant to make sentences more uniform around the
country, but uniformity isn't quite the same thing as fair and just.
Some defendants deserve a break; most do not. Judges - with the help
of juries - are in the best position to decide punishment in Tennessee
and in the federal system.