THE COURT ON SENTENCING

TWO 5 TO 4 SUPREME Court decisions Wednesday on federal sentencing
guidelines did not produce an entirely coherent result from a legal
scholar's point of view, but as a policy matter the outcome was the best
that could have been expected, given earlier court decisions.

The court ruled that the mandatory guidelines that have governed federal
judges' sentencing decisions since 1987 are unconstitutional, but in a
second case -- and with a different five-member majority -- it then
instructed judges to be strongly influenced by the guidelines in their
sentencing decisions. At best, this may mean that judicial discretion has
been restored, but with now-voluntary guidelines deterring a return to the
sentencing disparities that prompted Congress to enact the guidelines more
than two decades ago.

The logic that led five justices to strike down the mandatory guidelines
emerged first in a 2000 case, Apprendi v. New Jersey, and was extended in
last year's Blakely v. Washington. Both were the rulings of an eclectic,
liberal-and-conservative five-justice majority that held that state laws
instructing judges to increase sentences based on certain factors violated
the constitutional right to trial by jury. The laws told judges to increase
sentences based on their own finding of facts -- findings that a criminal
had been motivated by racial hatred, say, or had possessed more illegal
drugs than had been proven to the jury. The court said such elements
essentially changed the nature of the crime, and should be weighed by a
jury. The logic of those cases seemed applicable to federal sentencing
guidelines, too.

This week the same five justices confirmed that mandatory judicial
fact-finding under the federal guidelines is unconstitutional. But a
different configuration -- with Justice Ruth Bader Ginsburg jumping from
one majority to the other -- held that federal trial judges may and should
still use the guidelines as advisory.

It's not clear to us why it is constitutional to allow a judge to increase
a sentence based on facts not proven to a jury but unconstitutional to
require a judge to do so. But that is where the court's jockeying and
compromising have ended.

Some senators and representatives, particularly conservatives worried that
unshackled judges will now be too lenient, said they hope to quickly enact
a new sentencing scheme.

But likely legislative responses could make matters worse.

The court did not strike down mandatory minimum sentences, which remain a
source of irrationally harsh sentences; Congress might enact more of those.

Or legislators might insist on two-stage trials, in which prosecutors would
- -- as they now do in capital cases -- first prove guilt, and then prove
various elements justifying a harsh sentence, with a jury involved in both
phases.

But such a system could prove extremely inefficient.

Any sentencing system must balance legitimate competing values: between a
desire for consistency across courtrooms and a respect for judicial
discretion; between a need for rigorous punishment and an escape hatch for
mercy in special circumstances. No system will find the right balance in
every case, but the court may have stumbled into a reasonable compromise.
Congress at least should watch and see before rushing in with a radical new
approach.