WHEN CONGRESS PLAYS JUDGE

THE DEPARTMENT of Justice reacted as expected to last week's U.S. Supreme
Court decision that allowed federal judges to set sentences outside federal
guidelines. A spokesman said the feds are "disappointed" because this
ruling will lead to more disparity in sentencing.

Bunk. For one thing, that statement suggests that there is less disparity
with mandatory guidelines. That's simply not true. There are huge
disparities under the present system. Career drug dealers can see their
sentences shaved substantially if they testify against other players in
their drug ring -- even people below them -- while those new to the trade
don't have the knowledge to follow suit.

There also is disparity between venues. Supporters of the system argue that
uniform guidelines mean that offenders serve the same time for the same
crime, no matter who or where the judge is. But the present system
transfers discretion from judges to prosecutors. Some U.S. attorneys go for
the absolute maximum -- decades or more -- for first-time nonviolent drug
offenders, while others show more restraint.

There is the disparity between local and federal prosecutions. As Justice
Anthony Kennedy noted in a speech to the American Bar Association in San
Francisco two years ago, a young man prosecuted for possession of five
grams of crack would serve months if caught by local police, but a minimum
of five years if caught on federal property and prosecuted by federal
officials.

And I hate to tell you this, because it makes the issue all that much more
confusing, but the Big Bench only ruled that the federal sentencing
guidelines aren't mandatory. Mandatory minimums -- a separate set of
federal standards for politically incorrect crime -- remain mandatory.

If the Department of Justice wants less disparity, I have a great
suggestion: How about a ceiling for first-time nonviolent offenders, so
that they don't serve more than 10 years?

That would prevent overzealous prosecutors who heap charges on defendants
- -- hitting them for drug deals conducted by others, charging them for crack
(which brings a much stronger sentence) when cocaine traded hands -- so
that a first-time nonviolent offender, who is not a kingpin, ends up behind
bars for a decade or more, life even, as the career dealers roam free.

Last June, the Supreme Court issued a ruling that threatened to upend the
federal sentencing system. The court found that judges could not lengthen a
sentence based on the guidelines unless jurors ruled on the facts leading
up to the enhancement. It was a Sixth Amendment issue.

Would the new ruling apply retroactively? Would the guidelines be toast?

The legal community waited for later rulings to clarify this. Last week's
Booker and Fanfan decision showed a court making a results-oriented
decision. Rather than throw the guidelines out or saddle them with onerous
requirements, a thin majority of the court instead decided, , as Justice
Steve Breyer wrote, to determine "what Congress would have intended" -- and
they believed that Congress would have preferred that the court, given its
recent rulings, make the guidelines advisory, not mandatory.

Big problem: Even if the court was right about the intent of those who
passed 1984 law, this Congress can pass a law that says it wants the
guidelines to be mandatory. Then Booker won't mean anything. Further
prosecutions simply will require that juries rule on all factors leading to
a sentence.

In civics class, your teacher told you about the balance of power. The
executive, legislative and judicial branches compete, and no one branch has
the power to weaken the others. Your teacher never told you about the
victims. Or the mess that can ensue.

Decaces ago, judges chose to get around laws they didn't like -- they were
acting like lawmakers. Then lawmakers passed laws that set sentences for
trials they'll never see. Judges acted like lawmakers, then lawmakers acted
like judges. Hanging judges.

Eric Sterling doesn't get the hostility that congressional Republicans feel
toward federal judges. Since 1980, he notes, there have only been two years
when a Democratic president could name judges, and Democrats ruled the
confirmation process. As a result, the overwhelming majority of federal
judges are "Republican-vetted," Sterling noted.

Congressional activism is not an improvement over judicial activism. It is
a marriage of bad government with big government -- resulting in big, bad
government. It replaces judges choosing which laws they want to enforce
with lawmakers sentencing people they will never see.