A VERDICT ON SENTENCING

The federal system for sentencing criminals has long been complicated, and
it is only getting more so. After months in which the sentencing guidelines
hung in limbo, the Supreme Court has reached a decision relaxing their
effect. The outcome strikes a reasonable balance between judicial
discretion and uniform treatment of convicted criminals.

But it leaves no shortage of uncertainty. Some of the uncertainty is about
how judges will use the new discretion that they have been given. Some of
it is about how Congress will respond to seeing its creation--the
sentencing guidelines--partly dismantled. And some is the result of the
striking incoherence of the court's two-part decision resolving the issue.

The subject emerged last summer, when the court struck down the state of
Washington's sentencing system. Like the federal guidelines, the Washington
system provided a specific range of sentences for each crime. But it also
required the presiding judge to tack on additional years to the usual
maximum, upon finding that certain aggravating circumstances were present.

A man who pleaded guilty to second-degree kidnapping, which carries a
maximum sentence of 53 months, ended up with a 90-month sentence because a
judge found he had acted with "deliberate cruelty." The defendant
challenged the additional term, claiming he had effectively been convicted
of an additional crime without being granted his constitutional right to a
jury trial. The Supreme Court agreed, striking down the Washington system.
It concluded that judges may not be compelled to punish acts that
defendants have not admitted and have not been proven to a jury. The
decision cast a cloud over the federal guidelines, and some lower courts
immediately concluded they were unconstitutional.

In Wednesday's decision, the Supreme Court agreed that the federal system
suffers from the same basic defect it found in the Washington guidelines.
But instead of simply requiring juries to find guilt on any actions that
can boost a sentence above the standard limit, the court said the problem
can be fixed by instructing judges to treat the enhancements as advisory
rather than mandatory.

Here is the central paradox of the verdict: If a judge is required to
increase a sentence to reflect certain factors, then the defendant has been
deprived of his right to a jury trial. But if a judge is merely allowed to
increase a sentence to reflect certain factors, the defendant has not been
deprived of that right.

That outcome, the product of a badly divided court, doesn't make great
sense as a matter of constitutional reasoning. But the practical
consequence has much to recommend it.

It creates a presumption that judges will continue to adhere to the
guidelines unless there is good reason not to. But it doesn't lock them
into inflicting punishments even when they seem out of proportion in a
particular case. Prosecutors will be free to appeal sentences they regard
as too light, just as defendants can contest those that strike them as harsh.

The overall result could preserve much of the original purpose of the
guidelines, which was to assure that comparable defendants get comparable
sentences whether they commit their crimes in Brooklyn or Birmingham.

Some conservatives worry that judges will err too often on the side of
leniency. But that remains to be demonstrated.

Prosecutors, in any case, always retain the option of bringing additional
charges to make sure the defendant is appropriately punished for everything
he did.

In the event that the courts revert to the big disparities that once marred
federal sentencing, Congress will most likely want to act to limit judicial
discretion by boosting penalties. But the wisest course is to see if
problems arise before rushing to correct them.