MANDATORY SENTENCING FRUSTRATED

Mandatory sentencing slashes crime. The multiple decisions of the U.S.
Supreme Court in United States vs. Booker (Jan. 12, 2005) obtusely upended
mandatory Federal Sentencing Guidelines in the name of honoring both the
Sixth Amendment right to jury trial and congressional intent in enacting
the Sentencing Reform Act of 1984 (SRA).

Congress should race to restore federal mandatory sentences, but with
juries finding facts that would determine the severity of punishment.

Career criminals commit the bulk of offenses. Their incarceration
forecloses new crimes. Mandatory sentencing also captures noncareer
criminals. That misfortune is inescapable because criminology is an infant
science. Too little is known of the personalities or circumstances that
earmark recidivists to risk mandatory sentencing exceptions. But the
overbreadth is worth the price of protecting the innocent.

Since the displacement of Great Society sentencing indulgence with
mandatory schemes in the 1980s, the incidence of crime has plunged
dramatically. Countless murders have been avoided, endless rapes prevented,
innumerable robberies thwarted, and hundreds of thousands of other crimes
foiled because of mandatory sentencing.

Congress followed the post-Great Society tide in 1984 with the SRA to
stiffen sentences and to make them more uniform. A Federal Sentencing
Commission was created to promulgate mandatory Federal Sentencing
Guidelines (FSG). They identified characteristics of the offender and the
offense found by a jury in the trial phase that translated into a base
sentence.

In post-trial proceedings, the presiding judge could depart upward (or
downward) by making additional findings that aggravated or mitigated the
crime by a preponderance of the evidence. For example, an upward departure
would be justified if the judge found the defendant committed perjury in
testifying in his own defense.

Detractors of the FSG complained federal judges were handcuffed in making
sentences correspond to their morally superior yardsticks for measuring
depravity. But members of Congress, echoing public sentiments, adamantly
disagreed.

The correlation between mandatory sentences and tumbling crime rates was
too pronounced to ignore. Every effort to weaken the FSG or to endow judges
with more sentencing options was smartly defeated. The PROTECT Act of 2003
fortified its mandatory features by directing the Sentencing Commission to
further confine judicial opportunities for departing from base sentences.

In unmistakable language, Congress lashed at indulgent or starry-eyed
judges. The tart remarks of Sen. Orrin Hatch, Utah Republican, were
emblematic: "[The Act] says the game is over for judges. You will have some
departure guidelines from the Sentencing Commission, but you are not going
beyond those, and you are not going to go on doing what is happening in our
society today on children's crimes, no matter how softhearted you are. ...
We say in this bill: We are sick of this, judges."

The FSG, nevertheless, had vastly magnified the role of the judge at the
expense of the jury. After a criminal conviction, judges found facts
without the cherished procedural safeguards that protected a defendant from
unreliable verdicts, for instance, proof of guilt beyond a reasonable doubt
and a right to confront accusers. Under the FSG, the dubious findings of
judges substantially hiked sentencing ranges, for example, in Booker, from
262 months to life imprisonment. The Sixth Amendment right to a jury trial
withered. Arbitrary or oppressive judges regularly circumvent the jury
buffer by finding aggravating facts based on hearsay or whimsy.

Accordingly, a 5-4 majority held the FSG unconstitutional in Booker insofar
as judges usurped the traditional jury role in decisively determining the
range of permissible punishments. Writing for the Court, Justice John Paul
Stevens declared: "Any fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximums authorized by the
facts established by a guilty plea or a jury verdict must be admitted by
the defendant or proved to a jury beyond a reasonable doubt."

The self-evident remedy to cure the constitutional FSG defect consistent
with congressional intent was to retain mandatory sentencing, but to
require the prosecutor to prove all sentence-enhancing facts during the
trial phase. Congress had made the SRA progressively tougher on criminals,
and had voiced outrage with "softhearted" judges.

Given a choice between mandatory sentences determined by juries or
indeterminate sentences set by judges, Congress would have overwhelming
preferred the former. Yet a different 5-4 Supreme Court majority in Booker,
speaking through Justice Stephen Breyer, ridiculously insisted on the opposite.

Before his elevation to the Supreme Court, Justice Breyer had fathered the
FSG. In his Booker opinion, he doted on his offspring. He presumed the
infallibility of federal judges and their unexcelled moral insights about
criminals. He contrived a congressional love affair with judicial
sentencing discretion.

Accordingly, Justice Breyer rejected mandatory sentences under the FSG with
aggravating circumstances found by a jury in favor of a scheme that
Congress and the public have unequivocally disparaged as too lenient:
namely, indeterminate sentencing by irresolute judges that chronically
shortchange crime victims.

The 109th Congress should sprint to override Justice Breyer by reinstating
mandatory sentencing consistent with the constitutional right to jury
trial. No better crime fighting tool is available.