LET THE JUDGES GET BACK TO JUDGING

Just 10 weeks after it opened, the new $48 million Hidalgo County Jail
was already overcrowded and county commissioners were forced to
approve a $400,000 budget amendment to house prisoners at the La Villa
jail at a cost of $36 per day per prisoner

In Texas and across the country, our prisons are drastically
overcrowded. State by state, in jurisdictions as different as New
Hampshire and Arizona, with crime rates as disparate as Maine and
California, more criminals are doing more time than ever before.
Despite the mandatory sentencing laws that have proliferated for the
past 20 years or so, we seem unable to build prisons fast enough to
accommodate all the people we keep sending to fill them.

At the same time, virtually every state in the union faces the same
budget shortages we find here in Texas. Our new Department of Homeland
Security has passed regulations too numerous to mention to help fight
its war against terror. This has put the states in a horrible
position. They are not free to refuse the regulations but must somehow
come up with the money to pay extra airport screeners or to hire more
security guards.

Because the war on terror isn't going to end anytime soon and because
we simply cannot afford to incarcerate more people than already
inhabit our penitentiaries, we should find ways to reduce the number
of people behind bars. We must get smarter about how we deal with crime.

The U.S. incarceration rate is among the world's highest, five to 10
times as high as in many other industrialized nations. Federal, state
and local governments have been putting more

people behind bars even though crime, including violent crime, is down
sharply.

In New York, the prisons are filled with nonviolent drug offenders,
convicted under the

1970-era Rockefeller drug laws. In California, and other states with
"three strikes and you're out" laws, prisoners are being given long
sentences for relatively minor offenses. One Californian, whose
sentence was upheld this year by the Supreme Court, received 25 years
to life for shoplifting three golf clubs.

One of the sure signs that mandatory sentencing is getting out of hand
is seen when state legislature begin naming their sentencing laws.
"Penny's Law", also a product of New York, provides for mandatory
15-year prison sentences for juvenile offenders who commit second
degree murder. This sort of thing not only makes the juvenile justice
system irrelevant, but also helps to keep the prisons full.
Parenthetically, it assures that we give up on a young offender early
enough to ensure that he becomes a career criminal.

We are letting our politicians off far too easily when it comes to
crime. We let them get away with saying they're tough on crime in
order to get elected without requiring them to produce programs that
would reduce crime rather than simply increase sentences. We should
begin to consider whether we can deal with crime in ways that do not
break the community bank.

Supreme Court Justice Arthur Kennedy recently did something that
sitting justices almost never do --- he gave a speech with a political
message. He begged his audience to consider ending mandatory
sentencing so that, as he put it, judges could get back to the
business of judging. Kennedy's primary concern was that mandatory
sentencing ties the hands of jurists, who are forbidden to consider
mitigating circumstances. And it is precisely the idea that the same
crime does not always deserve the same sentence that led to judges in
the first place. Otherwise, a machine could determine the sentence.
Kennedy said he supported sentencing guidelines in principle, but that
they must be "revised downward" to less draconian levels. As for the
mandatory minimums, Justice Kennedy said he could accept neither their
"necessity" nor their "wisdom."

Even as these objections are being raised, the federal government is
making the situation worse. Congress recently enacted a new law,
called the Feeney Amendment, that reduces judges'

discretion to impose sentences less severe than those called for by
federal sentencing guidelines. And Attorney General John Ashcroft has
announced plans to track individual judges' sentencing records, an
intimidating move that amounts to the creation of a McCarthy-esque
judicial blacklist.

We need to re-think what it is we expect from our judicial system.
Serious reforms in sentencing procedures, the elimination of mandatory
minimum sentences and the restoration of judicial discretion would be
a good place to begin. It's not being soft on crime. It's being smart
on punishment.