MANDATORY SENTENCING REJECTION A WISE RULING

On the surface, the U.S. Supreme Court's two-part decision handed down
Wednesday saying mandatory sentencing guidelines are unconstitutional
may seem schizophrenic. On one hand, five judges, Antonin Scalia, John
Paul Stevens, David Souter, Clarence Thomas and Ruth Bader Ginsburg,
agreed the mandatory sentencing guidelines imposed by Congress in the
1984 Sentencing Reform Act were illegal. Those guidelines gave federal
judges the authority to up a defendant's mandatory sentence by years
if the judge determined, not the jury, that there were other
extenuating circumstances.

What made the situation maddening is the way in which five justices, a
different five, save one, decided to fix it. Steven Breyer, Sandra Day
O'Connor, Anthony Kennedy and Chief Justice William Rehnquist and Ruth
Bader Ginsburg ruled that a defendant's Sixth Amendment rights to a
trial by jury would be protected if the guidelines were discretionary
and not mandatory. Those sentences would be reviewed on appeal for
"reasonableness."

This two-part decision sets up a battle between Congress and the
judicial branch. For 21 years federal judges have complained that
mandatory sentencing took the judge out of judging. Jurists were
unable to factor the human element into their decisions. Not having a
human element is exactly what Congress had in mind when it passed the
Sentencing Reform Act. It was an effort to smooth out the wrinkles in
sentencing where criminals found guilty of similar crimes were given
widely divergent sentences.

Members of Congress are already contemplating ways to bend the federal
court's sentencing to its will. The New York Times quoted Frank
Bowman, an Indiana University law professor as saying, "This is a
story about a fight between branches of the federal government for
sentencing power." U.S. Rep. Adam Schiff, D-Calif., said, "The
professional judiciary haters in the Congress are going to have a lot
of grist for the mill."

That was born out in Rep. Tom Feeney's, R-Fla., statement. Feeney
wrote a provision in the sentencing reforms last year that required
the U.S. Sentencing Commission to provide names of judges who didn't
follow the guidelines to Congress. "The Supreme Court's decision to
place this extraordinary power to sentence a person solely in the
hands of a single federal judge, who is accountable to no one, flies
in the face of the clear will of Congress."

Though some members of Congress might reject the notion that judges
and juries hearing the actual case might have a better sentencing
perspective, the Supreme Court ruled rightly. While the fix they
imposed will lead to various definitions of what is "reasonable," it
is better to have that power in the hands of those near the process
than those who would decide from afar.