Sentencing Guidelines:

SUPREME COURT RESTORES SOME JUDICIAL DISCRETION

It is not difficult to criticize the circuitous way the U.S. Supreme Court
went about downgrading -- but not quite eliminating -- the controversial
sentencing "guidelines" Congress set up in 1984. The high court might have
created less confusion if it had simply declared the entire system
unconstitutional and told Congress to try again.

On balance, however, the court reached a constructive result. The federal
sentencing guidelines had created intolerable confusion and injustice and
had to go. The court didn't fix the entire problem, but it made a
respectable start.

Briefly, here's the background: In the 1980s, federal judges were being
criticized both by "tough-on-crime" advocates who condemned
"bleeding-heart" judges who handed out lenient sentences and by civil
rights advocates who claimed African-Americans tended to get
disproportionately long sentences. The perception was that sentencing for
similar crimes was wildly inconsistent from one part of the country to another.

So Congress created the U.S. Sentencing Commission, empowered to set up
sentencing guidelines for various offenses. The guidelines were more rigid
than most judges preferred, setting up a mandatory floor for sentencing and
making it difficult to revise a punishment downward based on mitigating
circumstances.

By 1997, a survey of federal judges found that two-thirds of them found the
guidelines unnecessary and many believed they were downright harmful to
justice.

The sentencing commission was challenged as unconstitutional since, in
effect, it performed legislative functions with no accountability to the
people or to any branch of government. But the high court upheld its
constitutionality in 1989.

Appellate lawyers tried a different path, and last year, in Blakely v.
Washington, the court found unconstitutional a state system based on the
federal guidelines. The reason? Sentences could be enhanced -- increased --
by a judge based on factors the jury hadn't considered or ruled upon. That
violated the guarantee of trial by jury.

Would the same criticism apply to the federal sentencing system?
Understanding the confusion the Blakely decision would create, the court
took up two drug cases -- U.S. v. Booker and U.S. v. Fanfan -- that raised
similar issues. It ruled 5-4 that federal judges are no longer bound by the
misnamed "guidelines."

Instead of eliminating the guideline system, however, a separate 5-4
majority ruled that the guidelines would henceforth be "effectively
advisory," giving judges more discretion to depart from them based on
individual circumstances.

The major effect will be on white-collar crimes and drug cases which,
according to the Sentencing Project, account for 55 percent of federal
prisoners. In the future, drug offenders are likely to get less severe
sentences, and some prisoners currently serving time could have their
sentences reviewed.

The effect on major crimes like murder, assault, robbery and the like will
be minimal, since most of these crimes are handled at the state level.

The decision, however, does not touch certain "mandatory minimum" sentences
Congress enacted during a flurry of get-tough-on-drugs legislation in the
late 1980s. Those laws have cost taxpayers while doing little or nothing to
reduce illicit drug use, but it will be up to Congress to change them.

A logical step would be for Congress to enact new laws calling for
treatment instead of prison in certain drug cases, along the lines of the
voter-enacted Proposition 36 in California. Whether Congress is in the mood
for such rationality is another question.

Congress should probably wait a while to see how the new system mandated by
the high court (many details of which are still fuzzy) works in practice.
If obvious injustices emerge, it can act then -- and probably create new
problems in the process.