Overturned

HIGH COURT RESTORES THE POWER OF JUDGES TO DECIDE SENTENCES

Perhaps the public didn't feel the Earth shift on Wednesday, but the
criminal-justice system certainly did. After two decades, the U.S. Supreme
Court ruled that mandatory federal sentencing guidelines are unconstitutional.

Federal judges still are required to consider the guidelines while
sentencing convicts, but they don't have to follow them. Soon they'll test
the boundaries, toughening punishments for those who commit crimes they
consider to be heinous, and backing off those caught up in circumstances
that couldn't be considered under the former system.

Lawmakers intended in 1984 to eliminate the disparities nationwide in
sentencing for similar crimes. The U.S. Sentencing Commission studied
average sentences for two years to write reasonable, inclusive guidelines.
But the guidelines were, in effect, commands. Judges were reduced to number
crunchers, a waste of their experience.

Up until Wednesday, if a criminal were convicted and sentenced in federal
court, the judge would convert the crime into points using his sentencing
manual. Say a bank employee embezzled money; that's six points. The amount
stolen was $1 million, so add 16 points. The bank's solvency was endangered
by his theft; that's four points. The total is adjusted upward by two
points because the employee held a position of trust.

Then the judge would consult a table and, using the total number, 28, find
the range of punishment. If this were a first offense, he would be
sentenced to between 78 and 87 months in prison. The sentence could have
been decreased if the person had admitted his guilt and avoided a trial, or
if he agreed to help the government investigate embezzlement by other bank
employees.

Ultimately, the guidelines' mandatory nature was their undoing. In United
States vs. Booker and United States vs. Fanfan, the court ruled that the
guidelines violate the Sixth Amendment right to a trial by jury. A jury
decides whether the accused is guilty beyond a reasonable doubt. But the
mandatory guidelines directed judges to take into account evidence given to
them by prosecutors and parole officers during the sentencing phase, and
more prison time could be added.

A jury might convict a drug pusher who possessed 50 grams of cocaine, but
if the judge finds out during sentencing that the pusher was the
ringleader, the sentence is lengthened accordingly, even if the jury never
heard that evidence.

If the guidelines originally had been advisory only, they would have passed
muster. Now, they do.

Judges may rejoice in the short term over the death of mandatory
guidelines, but the ruling could tempt Congress to pass more mandatory
minimum sentences, which are constitutional and currently used only for
crimes involving drugs and weapons.

Some judges argue that minimum sentences typically are set too high because
they assume a lot about criminals. For instance, a minimum sentence of five
years for possessing 5 grams of crack cocaine was created assuming that
crack users and dealers always carry guns and bring violence to
neighborhoods. Many times, that's true, but not always.

Instead of jumping to fill the gap left by this ruling, lawmakers ought to
step back and observe how well judges use their newfound discretion.