FEDERAL SENTENCING GUIDELINES CRITICIZED ON 15TH ANNIVERSARY

Fifteen years after sentencing guidelines for federal crimes took effect, a
study by the libertarian Cato Institute claims they have failed to reform
the judiciary.

The guidelines required federal judges to impose a specific sentence based
primarily on a criminal's history and the severity of the offense. While
some proponents of the guidelines have credited them with helping to reduce
crime, civil rights groups have complained that they give judges little
leeway to determine the appropriate punishment.

University of Utah law professor Erik Luna, who prepared the Cato analysis,
criticized the guidelines for stripping judges of their discretion when
imposing sentences on criminals. He said the guidelines unfairly punish
some individuals for minor offenses and are not tough enough on other crimes.

"Justice in sentencing requires an individualized assessment of the
offender and the offense," Luna wrote in the study. "Those judgments cannot
be made by a distant bureaucracy pursuant to abstract rules that disregard
important context."

The Cato analysis also questions the constitutionality of the guidelines -
whether Congress, through the U.S. Sentencing Commission, can impose
parameters on the judiciary.

"The commission is making law through an unconstitutional delegation of
legislative authority," Luna wrote. "This practice not only violates the
constitutional principle of separation of powers, but also serves the
typical lines of political accountability in American democracy."

The commission, made up of seven appointees of former President Bill
Clinton, has been through turbulent times in its 15-year existence. It is
charged with developing the sentencing guidelines for all federal felonies
and most senior misdemeanors.

Congress can weigh in on any amendments the commission proposes. Typically,
there is little debate about the changes. But a 1995 amendment that would
have changed the guidelines to equalize the penalties for crack and powder
cocaine sparked a fight that left the commission with little power.

Julie Stewart, who founded Families Against Mandatory Minimums in 1991,
said the commission is still recovering from the 1995 dispute. While it is
once again functioning (it was vacant until Clinton's June 1999
appointments), Stewart blames Congress for politicizing the debate over
sentencing guidelines.

"The guideline system would better if it were literally a guidance, rather
than a mandatory system," she said. "If a judge had a robbery case, ideally
[the punishment] would start at the same level as all robbery cases. But
then the judge would take into account the factors of the individual case.

"That's in principle what the commission is trying to do," Stewart said,
"except they've circumscribed it so tightly that you can't go that far up
or that far down when issuing a sentence."

But Heritage Foundation senior fellow Todd Gaziano said the criticism about
federal sentencing guidelines is unwarranted. He said the current
guidelines give judges some flexibility, while they also target judges who
had in the past gone soft on crime.

"When judges had almost complete discretion," Gaziano said, "some judges
were throwing the book at everyone. Other judges were letting everyone off
the hook. The more lenient judges were turning these people back on the
streets, which led to higher crime by the individuals who were released."

The guidelines, along with better policing and construction of prisons,
played a role in the decline of crime nationwide, he said.

Gaziano also questioned the notion that Congress did not have the
constitutional authority to create the commission. That question was at the
center of the 1989 Supreme Court case Mistretta v. United States. The court
sided with the government and allowed the commission to continue operating.

"It is the function of the legislature to establish the sentences for
different crimes," Gaziano said. "If Congress wants to give the judges a
little bit of discretion, then that is appropriate. But the judges had
shown they couldn't be trusted with too much discretion."

Scrapping the current sentencing guidelines and starting from scratch, as
Luna suggested, most likely will not happen overnight. But as part of the
15th anniversary, the commission has decided to undertake several studies
to examine how the guidelines could be improved.

U.S. Circuit Judge Diana E. Murphy, the commission's chairwoman, said many
of those efforts would be completed in the coming months. The commission is
reviewing its directive on repeat offenders, punishment for crack cocaine
use and mandatory minimum sentence guidelines.

In addition, Murphy said the commission has surveyed all federal district
and appellate court judges about their thoughts on the guidelines. When all
the information is compiled, she said it would help the commission amend
the guidelines if needed.

As far as Gaziano is concerned, the commission should make only sparing
changes to the guidelines. Otherwise, he said, it could be in store for
another dispute with Congress.

"The commission does a very good job overall," he said. "But sometimes it's
prone to overreact to special-interest pressure. When it does that, it
risks Congress overruling it and losing the confidence of Congress."