CHECKS AND BALANCES

In July, Utah federal Judge Paul Cassell said the system of federal
sentencing guidelines was unconstitutional.

In January, after the Supreme Court agreed with him, Cassell announced
that he will continue to be directed by those guidelines in deciding
when, and for how long, people will go to prison.

He was right both times. So was the Supreme Court.

Two decades ago, Congress correctly perceived a problem with the way
federal judges were sentencing people to prison. Sentences meted out
for similar crimes were too often not at all similar, depending on the
jurisdiction, the judge and, it was reasonably feared, the race,
wealth or connectedness of the accused.

Unfortunately, in the process of trying to right one wrong, Congress
created another.

The problem with the law, and with U.S. Sentencing Commission rules
set down pursuant to that law, was that it did not merely require
judges to impose harsher sentences on defendants who had committed a
particularly heinous crime, or series of crimes, but demanded that
they ignore the Sixth Amendment right to trial by jury in the process.

The guidelines that were imposed in 1987 did, in theory, guard against
the possibility that a white real estate agent in Idaho will get
probation while a black fry cook in Philadelphia would get 25 years
for the same basic offense.

But sometimes there are perfectly good reasons for one convicted drug
dealer, for example, to be given a different sentence than another. So
the guidelines include variances from that basic sentence for either
mitigating - assisting prosecutors in other cases or evidence that the
defendant was coerced by others - or aggravating - being the
ringleader or committing another crime while awaiting trial -
circumstances.

The unconstitutional part was that the difference between five years
and 55 years thus hinged on a post-trial accusation by the prosecutors
regarding the defendant's motivation, associates or conduct in
unrelated matters, all presented after the jury had gone home or,
depending on the celebrity of the case, gone on "Larry King Live."

The court didn't strike the sentencing guidelines, just the
requirement that judges adhere to them in all cases. The now-advisory
nature of the guidelines does present the possibility that sentences
will again become wildly, and unfairly, divergent.

Congress can fix that. But it need not be in any hurry.

As Judge Cassell demonstrated this week, most judges in most cases
will be happy to have a set of standards to guide them. Only if the
judiciary as a whole demonstrates that it is not able to handle its
newly increased discretion should Congress revisit this issue.