SENTENCING GUIDELINES: RESTORING THE 6TH

Largely below notice of all but the legal community, the federal government
had been systematically denying criminal defendants fundamental rights
under the Sixth Amendment.

These are the right to trial by jury and proof of guilt of each element of
the crime beyond a reasonable doubt.

The Supreme Court, finally, has decapitated the mandatory federal criminal
sentencing guidelines, established by Congress in 1987 to bring uniformity
to sentencing. They are now advisory only, an adjunct of a judge's
discretion in sentencing.

In one of the cases decided by the Supreme Court, the defendant was
convicted by a jury of possessing at least 50 grams of crack, calling for
210 to 262 months in prison.

But at sentencing, the judge found by a preponderance (more likely than
not) of the evidence that the defendant possessed another 566 grams. The
jury never heard this evidence. But, under the law, the judge was obliged
to consider it and add nearly 10 years to the prison term.

Who sentenced the defendant? Not the judge, but the Justice Department
prosecutors who were giddy with their permission to tear up the Bill of Rights.

But before we break out the party favors to celebrate the end of an
injustice, consider this: The ruling does not materially affect the
Constitution-be-damned instincts that gave rise to this case.

These are a permanent feature of our troubled republic.