WITH NO SENTENCING LEEWAY, FEDERAL JUSTICE WILL SUFFER

Recent "tough-on-crime" legislation takes away a source of common sense and
fairness in the courts: judicial discretion.

JUDICIAL discretion in sentencing is sometimes referred to as a safety
valve.

It allows judges to take into account special circumstances that never
occurred to the legislators who set criminal penalties. Jurists and legal
scholars believe such discretion is necessary to impose what Chief Justice
William Rehnquist called "just and responsible sentences." The elderly or
ailing defendant in a white-collar case, for instance, or the mother of
three whose involvement in a drug conspiracy consisted of letting her
boyfriend leave drugs at her house, might receive less than recommended by
sentencing guidelines.

Such common-sense decisions are about to end in the federal courts, however.
Legislation contained within the popular "Amber Alert" bill signed by
President Bush establishes mandatory minimums for a few crimes, directs the
U.S. Sentencing Commission to "substantially reduce" judges' leeway on
others and overturns a Supreme Court ruling requiring appellate courts to
defer to trial judges when reviewing sentences.

Supporters say they corrected an unfair lack of sentencing uniformity and
thwarted lenient judges. Opponents, who include conservatives such as
Rehnquist, offer more persuasive reasoning:

Variations in criminal cases are far too great for mandatory sentencing to
deal fairly with all circumstances.

Uniformity denies leniency to those who deserve it as well as those who
don't. This is no fairer.

Elimination of judicial discretion constrains the courts' check on federal
authority. Prosecutorial discretion becomes even more important, boosting
the government's already formidable power over defendants and plea bargains.

Federal prisons hold 400 percent more prisoners than in 1987, mostly
nonviolent drug offenders. Harsher sentencing will raise incarceration costs
and the budget deficit.

Morally and practically, the legislation fails.