MANDATORY SENTENCES LOOM AS ISSUE

Ahead of Supreme Court Session, All 3 Branches of Government Jockey Over
Control of System

The three branches of government are jockeying to gain control over criminal
sentencing should the Supreme Court change or even strike down the current
system of federal guidelines.

The Supreme Court is set to hear arguments Monday in two cases that the
Justice Department maintains show that federal sentencing guidelines are
constitutional. Enacted in 1987, the guidelines designate factors judges
must consider in sentencing defendants. They have served as a model for
criminal sentences ever since.

The high court threw the sentencing system into turmoil in June. In a case
from Washington state, it ruled that any factor that increases a criminal
sentence under the guidelines -- other than a prior conviction -- must be
admitted by a defendant in a plea bargain or proved to a jury beyond a
reasonable doubt.

That ruling has left lawyers, judges and legislators uncertain about the
validity of federal sentencing guidelines. It also has prompted speculation
that Congress will impose mandatory sentences for a raft of crimes, from
minor offenses to major felonies, leaving judges no latitude to allow for
individual circumstances. The Supreme Court in 2002 affirmed the legality of
mandatory minimum laws enacted by Congress.

The emerging battle lines address a central question over the assumed
separation of powers between the legislative and judicial branches: Who has
control over sentencing? Judges long have held undisputed authority, but
tough-on-crime politicians during the past 20 years have steadily eroded the
discretion of judges through sentencing guidelines and a steady increase in
mandatory minimum sentences. More than half of those sentenced annually for
drug offenses receive mandatory minimums. Of the 49,965 defendants sentenced
for drug charges in 2001 and 2002, 56.9% received five-or 10-year mandatory
minimums.

If the federal sentencing guidelines are struck down, "the last word will
come from Capitol Hill, which is champing at the bit" to enact legislation,
says U.S. District Judge Ruben Castillo, one of three judges on the U.S.
Sentencing Commission, which promulgates the federal guidelines.

The House Judiciary Committee could as early as today approve a bill to
raise mandatory minimum sentences for some crimes, such as drug trafficking
near video arcades, and to create new mandatory minimums for offenses
including drug trafficking near drug-treatment facilities and day-care
facilities. It also curbs some protections that low-level, nonviolent
offenders can receive against longer sentences.

The proposed bill was introduced in early June by House Judiciary Committee
Chairman F. James Sensenbrenner (R., Wis.) and approved last week by a
Judiciary subcommittee. That bill stemmed partly from lobbying by the
Justice Department to lessen the likelihood that low-level, nonviolent
offenders would be treated leniently. In addition to creating new mandatory
minimums, the bill increases the penalties for use of a firearm while
committing a drug crime. It also imposes a mandatory life sentence for
three-time drug offenders.

Approval of the bill is considered likely, as legislators don't want to be
seen as being soft on crime in an election year. Moreover, Mr. Sensenbrenner
wields considerable clout; he is credited with aggressively pushing through
a law last year that restricts the ability of judges to grant more-lenient
sentences than guidelines allow, an action known as downward departures.
That bill, known as the Feeney amendment, and the child-protection bill to
which it was attached, marked the first time Congress had directly amended
the sentencing guidelines.

Though mandatory minimums initially were intended to target only the most
violent drug offenders, Congress in recent years has broadened mandatory
minimums to include defendants convicted of identity theft, crack-cocaine
possession and Internet pornography.

The Justice Department has attempted to aid the momentum. In op-ed articles
drafted by the Justice Department and published in local newspapers across
the nation, a number of U.S. attorneys have backed mandatory minimums. Such
minimums require judges to issue stiff sentences, without discretion, for a
variety of crimes and prohibit them from departing downward from the
minimums, unlike the guidelines. Supporters believe mandatory minimums help
lower crime rates.

"Mandatory minimum sentences are a critical tool to protect our
communities," wrote Jim Vines, U.S. attorney for Middle Tennessee, in an
Aug. 3 article in Nashville's Tennessean newspaper. "We need mandatory
minimum sentences, and we must resist the misguided calls for their repeal."

In an interview, Mr. Vines said it was coincidence that his article
resembled two others that later ran. "I took materials the DOJ gave me and
constructed my own op-ed," he says. Mr. Vines says that while he was
encouraged by the Justice Department's public-affairs unit to publish a
piece supporting mandatory minimums, he believes in these laws and credits
them for the decline in the national crime rate.

In Utah, an influential federal judge in Utah has concocted a creative way
to highlight -- and protest -- what he views as a draconian
mandatory-minimum system.

On a single day in November, U.S. District Judge Paul G. Cassell, who has
written extensively about the inequities of mandatory minimum-sentencing
laws, has scheduled three sentencing hearings. They involve a carjacker who
took a car from an 18-year-old female college student at knifepoint, a man
who killed an elderly woman and dumped her body in a river, and a rap-record
producer who sold several hundred dollars of marijuana while carrying a gun.

The carjacker, who was convicted of two prior violent felonies, faces a
mandatory life sentence, but will be eligible for release at age 70. The
killer faces a sentence of as much as 20 years under federal sentencing
guidelines.

The 25-year-old producer, Weldon Angelos, who is a first-time offender,
faces a mandatory minimum of 63 years with no chance for early release. Had
Mr. Angelos chosen to plead guilty instead of going to trial, he would have
received a sentence of 16 years, according to a plea-bargain offer made in
January that was reviewed by The Wall Street Journal.

Some jurists believe that with federal sentencing guidelines under scrutiny,
the Supreme Court may want to revisit mandatory minimums. In the case of Mr.
Angelos, Judge Cassell has asked defense and government lawyers to brief him
on the constitutionality of mandatory minimum sentences. Jerry Mooney, the
lawyer representing Mr. Angelos, calls Judge Cassell's sentencing plan "very
creative."

The judge, a conservative former academic who was nominated to the federal
bench by President Bush, has ample support for his concern about mandatory
sentences. Twenty-nine former federal and appellate judges and U.S.
Attorneys have written a brief urging Judge Cassell to find that the
mandatory minimum sentence in the rap-record producer's case is cruel and
unusual punishment, and thus unconstitutional.

Among those signing the brief are former U.S. Attorney General Nicholas
Katzenbach and U.S. attorneys from New York, Mississippi, Tennessee,
Florida, Michigan, Pennsylvania, New Jersey, Ohio and Massachusetts.