ONE-SIZE-FITS-ALL SENTENCES CREATE JUDICIAL MUDDLE

When U.S. District Judge Richard Owen of New York earlier this month
sentenced Frank Quattrone, the top technology banker at Credit Suisse First
Boston, to 18 months in jail for obstruction of justice, it raised a few
eyebrows in the legal community. Although the federal sentencing guidelines
called for a sentence of 10 to 16 months, Owen chose to "enhance" that
sentence, saying he was moved to extra severity because he believed that
Quattrone had lied under oath when he took the stand in his own defense.

In handing down an 18-month sentence, Owen not only departed from the
clearly established guidelines, he gave prison time to Quattrone for conduct
that had not been the subject of the indictment, had not been tried by a
jury and had not been proved beyond a reasonable doubt.

In doing so, he waded into one of the most controversial areas of the law at
the moment, an area that is the subject of a 5-4 U.S. Supreme Court decision
that has left unclear just how much discretion a federal judge may exercise
in a criminal case.

Until 20 years ago, it wouldn't have even been an issue. From the birth of
the American republic until 1984, federal judges had broad discretion to
impose criminal sentences within maximum limits prescribed by Congress. The
idea was that criminal sentences would be imposed by a rational, competent
federal judge who was fully informed about the offense and well acquainted
with the defendant; it was expected that the judge would fashion a sentence
that tempered justice with mercy in the particular case.

The trouble with this system was sentence disparity. Sentence disparity
occurred when two defendants were convicted of the same crime but one
received a relatively lenient sentence from one judge and the other received
a relatively severe sentence from another. This can happen if, say, one
judge particularly frowns on white-collar crime, believing that the
privileged, such as Quattrone - who, according to prosecutors, earned $120
million in 2002 - should be dealt with severely, but another judge thinks it
is street crime that requires especially tough sentencing.

So Congress tried to make sure that all defendants got the same sentence,
within a specified range, for a given crime. Responding largely to the 1972
book "Criminal Sentences: Law Without Order," in which U.S. District Judge
Marvin Frankel of New York denounced sentence disparity, Congress enacted
"guidelines" that critics say have strengthened the hand of prosecutors and
straitjacketed the options available to judges.

The guidelines require that the maximum and minimum length of potential
prison terms fall into a mathematical range, or grid, determined by a
consideration of the charges against the defendant and the existence of a
prior criminal record. This formula produces a point score that leads to the
range of sentence.

But although the guidelines may have reduced sentence disparity, they also
led, in the years that followed, to harsher sentences. Before the guidelines
were adopted, Quattrone probably would have received a sentence of six to
eight months - instead of 18 with no prospect of parole.

And although the term "guidelines" may suggest a measure of discretion, in
fact, they were more modeled on the Ten Commandments. Woe betide the judge
who strays from the indicated range for reasons not set forth in the
guidelines themselves. He or she will be summarily reversed by the appellate
court.

Examples of prejudice sewn into the guidelines abound. An obvious one is
that, although extensive studies have shown that there is no difference in
the dangers posed by crack cocaine and those of powdered cocaine, Congress
insisted on a guideline for crack cocaine that is 100 times greater than for
the powder. Because crack is the drug of choice for the black community, the
result is that a black defendant will often face a harsher sentence than the
Beverly Hills movie mogul caught with the same quantity of more expensive
powdered cocaine.

The regime became even more draconian in April 2003 when Congress enacted
amendments further reducing the ability of judges to adjust sentences
downward from guideline levels, while enhanced sentences were authorized in
certain cases for matters irrelevant to the conviction, such as a
defendant's bad character, indebtedness, meretricious behavior or, as in
Quattrone's case, false testimony at trial.

Complicating the matter further, the U.S. Supreme Court got into the act in
June. In a 5-4 decision in Blakely v. Washington, the court struck down the
state of Washington's sentencing guidelines as unconstitutional because they
authorized an upward departure based on extraneous factors not proved to a
jury beyond a reasonable doubt - the very constitutional infirmity that
appears in the Quattrone sentence.

The 9th U.S. Circuit Court of Appeals, which covers California, and one
other federal appeals court have ruled that the Blakely decision applies
federally, although another circuit has held that it does not.

The Bush administration has urged the Supreme Court to act swiftly to
salvage the judicial shipwreck by upholding the constitutionality of the
federal guidelines, and the court is scheduled to hear arguments on the
issue early next month.

Justice Sandra Day O'Connor made clear her dissent from the view that the
guidelines are unconstitutional. She told the 9th Circuit judicial
conference that she was "disgusted" by the court's close ruling in Blakely,
which she termed a "No. 10 earthquake," rolling back 20 years of penal
reform.

If the majority of the Supreme Court agrees with her, the guidelines may
live out the year. But, as we all know, O'Connor is but one of nine.

Zirin is a lawyer in New York.