AN UNWELCOME DEVELOPMENT ON SENTENCING GUIDELINES

A Supreme Court Decision On Mandatory Federal Sentencing Guidelines
Created Confusion

When the Supreme Court seeks to clarify matters, to find order out of
chaos, it sometimes succeeds in making things worse.

That was certainly the consequence of Roe v. Wade, a 1973 decision
that Justice Harry Blackmun (who wrote the opinion) believed would
settle the issue of abortion once and for all. Instead, by choosing to
circumvent the political process and invent a novel right to privacy,
the court created the modern anti-abortion movement. The intent of Roe
may well have been benign -- to reserve the abortion option in law --
but does anyone believe that it settled the issue?

The same, unfortunately, may well be said about its 5-to-4 rulings
last week on mandatory federal sentencing guidelines.

To begin with, as it sometimes does, the court issued a relatively
ambiguous message. It struck down the mandatory federal guidelines,
which have been in effect since 1987, as unconstitutional -- a welcome
development. But it also produced a second ruling to the effect that
judges should regard those guidelines as advisory, instructing them to
follow them, as much as possible, in meting out punishment. Some
judges will feel obliged to stick to the guidelines, but others will
not.

The result? No one is happy. The people who like mandatory minimum
sentences are furious that federal magistrates will now have
discretion, and sentences will be disparate in different courts and
jurisdictions. A crime that may strike a federal judge in Texas as
serious business may seem less onerous to a colleague in New York, or
vice versa. Those disparities will lead to confusion and uncertainty
- -- and, in due course, to a legislative remedy.

Alas, legislative "remedies" are often the political equivalent of
patent medicine: They sound good, and appeal to customers, but are
often ineffective, and sometimes worse than the malady. That is why
opponents of mandatory minimum sentences are nervous as well. All the
arguments that prompted Congress to act 18 years ago will be revived.
They might well yield new sentencing laws more draconian than the
last, and crafted to satisfy the narrow court majority.

Critics of the court will complain that the absence of mandatory
guidelines will lead to chaos and disparity, but that was not what
prompted Congress to act in the first place. It is true that certain
crimes have been treated more harshly in certain circuits than others,
but Congress was inspired exclusively by the notion that certain
judges were too lenient in their sentences.

Like welfare Cadillacs and Pentagon toilet seats, lenient judges are a
popular public villain -- even if evidence for their existence is
fleeting. The truth is that, for the most part, the practical
consequence of mandatory guidelines has been two decades of unduly
harsh, extended prison terms for nonviolent offenders convicted of
drug crimes.

That the American prison population has exploded in recent years is
due not to superior police work, but to demographic changes and cruel
sentences for transgressions that are difficult to classify as serious
offenses. Or put another way, we are filling up the federal prisons
with many people who probably shouldn't be imprisoned at all.

I am not, of course, talking about big-time drug dealers, or people
who commit violent crimes associated with trafficking. But are we
entirely comfortable, as a society, with incarcerating people -- for
10, 20, 30 years -- who are basically addicted to opiates? It would
not occur to us to throw smokers behind bars -- not yet, anyway -- or
imprison athletes who use steroids. But the impulse to punish junkies,
small-time dealers and casual consumers of "recreational" drugs is
grounded in social attitudes, not the fight against crime.

Which leads to one uncomfortable truth: For some things, there is no
absolute legislative or judicial solution. I can appreciate the anger
and frustration of those who deplore judges who might seem too
solicitous toward offenders. And it would be nice to have some measure
of consistency in justice. But a daily scan of the newspaper reveals
routine disparities between crimes and sentences, in the same place,
and the justice system will continue to treat criminals one way in New
York and another in Texas.

That is not, perhaps, ideal, but when Congress proposes absolute
consistency it "solves" one dilemma and produces two big problems.

The first problem is that we are a federal system, and when
congressional guidelines trump local judgment, yet another prerogative
of the states disappears. Problem No. 2 is that mandatory minimums, in
a free society, turn our judicial system into a police state, and take
problems best left to judges and courts and put them exclusively in
the hands of politicians.