HIGH COURT TWEAKS RULES IN THE INTEREST OF FAIRNESS

Justice is a quest for fairness. But fairness can be elusive. In the 1980s,
the nation became concerned with sentencing disparity -- the same crime
that earned a felon a decade in prison in, say, Omaha, might draw only two
years if committed in Chicago. That wasn't fair. So in 1986 Congress set
mandatory minimum sentencing guidelines establishing fixed punishments that
were uniform nationwide.

The guidelines first applied to drug crimes. Judges could consider just
three factors in picking a sentence: the type of drug involved, the
quantity and the record of the defendant.

They could also reduce a sentence based on a defendant's cooperation with
authorities.

This led to all sorts of dire unexpected consequences. Instead of the same
crime getting wildly differing sentences in different parts of the country,
now we had wildly differing cases getting the same sentence if they fit
within rigid guidelines. Judges could not consider factors such as
motivation -- a person duped into carrying drugs was treated the same as a
hardened dealer. And the provision to reduce sentences for cooperation
ended up rewarding higher-ups in drug operations -- who had more knowledge
to trade with authorities -- while throwing the book at low-level mules
with no one to rat out.

On Wednesday the Supreme Court issued two opinions that should have a huge
impact in reducing the unfairness in the federal sentencing system.

First, it ruled that judges, in applying the guidelines, cannot take into
account facts not established in court. In other words, in sentencing
someone convicted of selling 100 grams of cocaine, the judge cannot factor
in the felon's sale of 80 more grams if that wasn't proven in court, since
doing so would violate the Sixth Amendment -- basically punishing citizens
for something not proved at a trial.

Second, the court disposed of the mandatory aspect of the guidelines,
making them advisory. This is important because for years judges complained
they were handcuffed by the rules, forced to impose sentences harsh beyond
what the facts before them warranted. More than one federal judge resigned
rather than uphold the system.

This pair of rulings -- one reducing judicial leeway, limiting a judge's
ability to determine facts outside of trial, and one expanding freedom to
impose sentences that strike the judge as reasonable -- taken together have
the effect of making our sentencing system more humane and fair.

The Supreme Court called upon Congress to now revisit its guideline system,
and we hope that it does so in full knowledge of the problems of the past.
The federal prisons are packed with non-violent drug offenders who couldn't
be released -- until now -- no matter how their circumstances might demand
it. We believe this is an important step toward a fairer system of justice.