CRIME AND JUSTICE

Letting Judges Be The Judge

In two 7-2 cases, the Supreme Court has gone a long way toward
restoring broad discretion in sentencing to federal judges in criminal
and especially drug cases. The court effectively reaffirmed that
federal sentencing guidelines are advisory and not mandatory.

The justices did not deal with the constitutionality of widely
disparate sentences for similar crimes, which figured parenthetically
in one of the cases.

The minimum sentence for the largely white users of powdered cocaine
is five years for 500 grams. For the largely black users of crack
cocaine it is five years for only 5 grams.

A federal judge in Virginia called the disparity "ridiculous" and
ignored the minimum in a crack-case sentence. The appeals court
rejected the sentence, but the Supreme Court stood by the district
judge's discretion in the case.

The ruling is not a call for slap-on-the-wrist justice. The judge
imposed a sentence of 15 years for cocaine distribution and
gun-related charges instead of the 19-year minimum called for by the
guidelines -- and that only because the defendant was a first-time
offender and an honorably discharged veteran.

Justice John Paul Stevens wrote that "due deference" must be paid to
the judge's discretion and that just because the sentence is outside
the range of the guidelines "the court may not apply a presumption of
unreasonableness."

In the other case, federal prosecutors appealed a judge's decision to
give 36 months' probation instead of 30 months in jail to a master
carpenter who had been briefly part of an ecstasy ring in college. He
wasn't tracked down and arrested until years later and, in the
meantime, had led an exemplary life.

For some crimes, such as cocaine possession, the disparate sentences
are part of the law, a discrepancy that Congress plans to address next
year.

The two decisions go a long way toward restoring judicial discretion
and flexibility and recognize that uniformity in applying the law is
not the same as one-size-fits-all.