SENTENCING SYSTEM A PETRI DISH FOR POLITICAL OPPORTUNISTS

Watching the market these days is enough to make a stockholder seasick.
Americans have weathered the turbulence of Wall Street before, but the
Titanic-size dive of some of capitalism's apparently unsinkable enterprises
has sent many investors scrambling for life preservers. To a certain
extent, the market plunge was preordained by a giddy exuberance for any
high-tech venture, no matter how frivolous, guaranteeing that the dot-com
bubble of the '90s would burst in spectacular fashion.

What has turned investor despondence into rage, however, are the ongoing
revelations that some captains of industry were involved in corporate
shenanigans that would make robber barons blush.

Now people want blood - and in an election year, national politicians are
more than eager to quench this bloodthirst with tough rhetoric and legislation.

As might be expected, the sometimes hysterical calls for reform went beyond
civil business regulation and into the arena of criminal justice. In a
speech to Wall Street, President Bush proposed an increase in the maximum
sentence for mail and wire fraud, and called upon the U.S. Sentencing
Commission to enhance punishment for corrupt executives. Since that time,
federal lawmakers have fallen all over themselves trying to look even
tougher, offering both newfangled business crimes and harsher punishments
for existing offenses.

As Rep. Michael Oxley quipped, "Summary executions would get about 85 votes
in the Senate right now."

This past Tuesday, a corporate reform bill was finally signed into law.
Among other things, it creates a new crime for executives who submit false
financial reports and increases the punishment for securities fraud to 25
years in prison.

But there are good reasons to be skeptical about the use of the federal
criminal justice system as a tool of corporate reform.

To begin with, most of the proposed changes would have little if any effect
on the prosecution of white-collar criminals. Virtually all of the recent
corporate misconduct can (and will) be handled with crimes already on the
books.

In turn, the increased punishment provides little more than prosecutorial
convenience, given that any experienced assistant U.S. Attorney knows how
to "stack" or multiply fraud charges to obtain the desired sentence.

No matter - the effectiveness of criminal legislation is often less
important to politicians then the sound bites it produces.

Think of Polly Klaas, the 12-year-old murder victim whose image was
exploited by campaigning politicians in support of California's infamous
"Three Strikes and You're Out" sentencing law. Officials didn't seem to
care much that "Three Strikes" was theoretically deficient, enormously
expensive, and downright cruel in some applications. Instead, most
political candidates rode this morally and economically bankrupt law all
the way to election-day victories.

Consider also Congress' enactment of harsh punishment in the wake of the
crack cocaine hysteria of the 1980's. Although politicians pointed to it as
evidence of their toughness on crime, the legislation has had little effect
on drug markets while inundating federal prisons with disproportionately
minority and low-level offenders.

In a very real sense, then, the recurrent use and abuse of sentencing laws
for political gain, particularly by federal officials, represents an
ongoing fraud on the American people.

Quick fix solutions implicating the federal criminal system - creating
hybrid crimes, for instance, or toying with the amount of punishment - help
elect politicians, all of whom know (or should know) the limited and
sometimes negative consequences of their latest social panacea.

More importantly, sentencing machinations for political ends have spawned a
Moby Dick-size red herring on the problems with punishment in federal court.

Unknown to many Americans, federal sentencing is controlled by a largely
unaccountable and insulated agency, the U.S. Sentencing Commission. This
"fourth branch" of government has assumed Congress' power to make criminal
law and usurped much of the judiciary's traditional authority over criminal
punishment. Through its enactment of mandatory "sentencing guidelines," the
Commission has all but eliminated the ability of trial courts to mete out
individualized punishment and simultaneously expanded the power of federal
prosecutors, giving them another tool to squeeze out information and guilty
pleas from defendants. With unique prosecutorial authority over penalty
reductions and lenient rules of evidence at sentencing hearings, federal
law enforcement needs more leverage in the criminal process like Arthur
Anderson needs more shredders.

The congressional propensity to criminalize and punish only obscures real
scandals: Federal sentencing law is determined by an unconstitutional
"junior varsity Congress"; the guidelines have drastically shifted
authority from judges to prosecutors, remak-ing the former into little more
than rubber stamps during sentencing; and defendants are being punished
under a confusing, hypertechnical, mechanical process that treats people
like widgets rather than human beings.

Like most Americans who have lost their shorts over the past weeks and
months, I have little sympathy for corporate executives who swindle
innocent investors and irreparably damage their companies and employees to
boot. But I also lack compassion for political opportunists who use the
criminal process as a means to capitalize on gut-wrenching events.

If federal officials were really serious about their jobs - and the
sentencing regime erected under their watch - they would stop tinkering
with federal punishment for personal, electoral gain and start talking
about large-scale reform of a broken penal system.