JUSTICE: UNDOING THE UNJUST SENTENCING

Nov. 1 marked the 15th anniversary of the U.S. Sentencing Guidelines.

But there were no celebrations, parades, or other festivities in honor of
this punishment scheme created by Congress and the U.S. Sentencing Commission.

Instead, the day passed like most others during the last 15 years: Scores
of federal defendants sentenced under a constitutionally perverted system
that saps moral judgment through its mechanical rules.

Driven by concerns of disparate treatment and undue leniency in punishment,
Congress created an independent agency to formulate a new regime that would
limit the discretion of federal judges. In producing detailed rules that
act as federal law, however, the U.S. Sentencing Commission has become, in
Justice Antonin Scalia's words, a "junior varsity Congress."

This new regime not only disregards basic constitutional principles but
also severs the typical lines of political accountability in American
government.

With the Commission and its Guidelines, no democratically responsible body
can be held to answer for the many failures in federal sentencing.

This is compounded by the political character of the Commission, composed
of party adherents and aspirants to higher office.

The Guidelines also undermine any number of individual rights. For
instance, their provisions often require federal courts to impose
punishment not just for the specific criminal conviction but also for
alleged facts that played no part in the underlying prosecution. This
so-called "relevant conduct" need not be proven beyond a reasonable doubt
as required by the Constitution.

It can, in fact, be substantiated by evidence that is usually inadmissible
in court, and can even be based on charges for which the defendant was
acquitted at trial.

Beyond constitutional problems, the Guidelines have proven to be unfair and
unworkable in practice. Justice in sentencing requires an individualized
assessment of the offender and the offense, leading to a moral judgment
imposed by judges with skill, experience and wisdom.

Those decisions cannot be made by a distant bureaucracy that produces
abstract laws which ignore important context.

But that is what occurs in today's federal courts: Individuals are
sentenced under the Commission's micro-managed rules, which substantially
limit the potential sentencing range and expressly forbid judges from
considering personal characteristics like the defendant's age, mental
condition, family responsibilities and employment history.

Frankly, it's Orwellian "doublespeak" to call the present rules
"guidelines," as trial judges must follow these sentencing commandments or
face reversal by appellate courts.

In turn, sentencing rigidity and the lack of judicial discretion have
produced a type of systematic deception to avoid otherwise preordained
sentences.

Federal prosecutors and defense counsel often evade the Guidelines through
the use of secret agreements on the facts to be presented in open court.
This process of "fact bargaining" results in attorneys lying to the judge
about the amount of drugs or monetary loss, the dates of crime, the
existence of a firearm, and so on - all with the goal of skirting the
federal rules.

Likewise, some trial judges simply manipulate the actual facts of a case to
reduce punishment calculations or instruct probation officers to modify
their sentencing reports to be consistent with a predetermined outcome. The
great irony is that the Commission was supposed to bring about "truth in
sentencing."

Admittedly, many will find it hard to sympathize with individuals sentenced
under the Guidelines. The federal system tends to invoke images of
convicted mobsters, drug kingpins, white-collar scoundrels, and, most
recently, anti-American terrorists. ... They sit in prison not because
their punishment is morally deserved or achieves some social goal like
crime deterrence, but because the Guidelines have converted federal trial
judges into rubber-stamp bureaucrats rather than moral decision-makers.

If the last 15 years have proven anything, it is that justice in sentencing
cannot be served by the mechanical rules of a distant bureaucracy. Only
judges can mete out punishment that fits both the offense and the offender,
mindful of the deeply held notion that government must treat each
individual as unique rather than just another object on the conveyor belt
of sentencing.

Erik Luna is associate professor of law at the University of Utah and
author of the Cato Institute Policy Analysis, "Misguided Guidelines: A
Critique of Federal Sentencing."