GIVE FEDERAL JUDGES A CHANCE TO WORK WITH 'OPTIONAL' GUIDELINES

Last week's U.S. Supreme Court ruling on sentencing guidelines is a
landmark regarding Sixth Amendment protections for the rights of the
accused, on a par with the Gideon case of 1963 (right to counsel) and
the Miranda case of 1966 (protection against self-incrimination).

The ultimate effect of this important, two-part ruling is uncertain,
however, and will reach far more broadly than the 60,000 criminals
sentenced in federal court every year. In one part, the justices said
federal sentencing guidelines formulated in 1987 are unconstitutional.
In the other part, they said they think judges should voluntarily
follow them. Different majorities supported each of the rulings, with
only Justice Ruth Bader Ginsburg in the majority for both. The
uncertainty is of the Supreme Court's own creation. How is it
constitutional for a judge to decide to use the guidelines, (to add to
a sentence), but unconstitutional to require him or her to do so?

The majority reasoned that a defendant's Sixth Amendment rights might
be violated when judges use the guidelines to add to a sentence
imposed by a jury. Earlier rulings on cases from New Jersey and
Washington suggest that the justices believe state guidelines would
have the same deficiencies. (That point is pertinent here, because the
Pennsylvania Legislature added a series of sentencing guidelines in
the 1990s.)

Having such uncertain guidance is more than an intellectual challenge.
Sentencing guidelines are, and will continue to be, very political.
Conservatives in Congress already have expressed the concern that the
Supreme Court ruling will turn loose "liberal judges" who will now
fail to adequately protect the public peace by setting criminals free.
Last year, Republicans in the U.S. House required the U.S. Sentencing
Commission to compile and provide to them a list of judges who violate
the guidelines. But the debate isn't purely between Republicans and
Democrats, conservatives vs. liberals. Rather, the debate is about
rebalancing control of criminal sentencing between the judiciary and
the legislature.

The ruling left intact separate mandatory minimum sentences. It also
left unchanged the federal parole system, which has tightened over the
years so that a sentence received is pretty much the sentence that is
served. So, we don't expect the result to be a nightmare of hardened
criminals running amok through the streets. Remember, the Supreme
Court said judges may follow Congress's guidelines if they choose to.
(Actually, the court was a bit firmer than even that. The majority of
justices said district judges should follow the guidelines.)

For these reasons, Congress should not rush to rewrite sentencing
guidelines. Give federal judges time to run their courtrooms as best
they can, and track the results. If they prove unable to handle their
new discretion -- something we think is unlikely -- Congress still
will be able to revisit the issue.