Pubdate: Sat, 15 Jan 2005
Source: Times Argus (Barre, VT)
Copyright: 2005 Times Argus
Bookmark: (Ashcroft, John)


A U.S. Supreme Court decision rejecting mandatory federal sentencing
guidelines is part of a broader social and legal war about justice in

The murder case against Donald Fell, who is accused of killing a North
Clarendon woman in 2000, became part of that war when defense lawyers
challenged the constitutionality of the federal death penalty statute.
Ultimately, they lost that challenge when the U.S. Supreme Court
refused to hear their appeal. Now the war over the judiciary has
escalated following the decision released on Wednesday in which the
Supreme Court ruled that federal sentencing guidelines would have to
be interpreted by federal judges as advisory rather than mandatory.

In a series of cases the Supreme Court has established that the
individual's right to a fair trial extends to the sentencing phase of
a trial. Thus, sentences by judges based on facts that have not been
subject to the same strict rules by which trials are conducted are not
permitted. Sentences must be based on facts that have been tested
during trial; otherwise a defendant's rights have been compromised.
The federal sentencing guidelines violated this principle, according
to the Supreme Court, because they mandated stiffer sentences when
judges made certain factual findings in a case.

Behind these court cases a conflict is brewing about how to view the
judiciary. Pressure from conservatives created the guidelines in the
first place. The aim of the guidelines was to establish mandatory
sentences in order to prevent judges from issuing sentences that were
inconsistent or too lenient.

Judges, including Chief Justice William Rehnquist, have chaffed at
these restrictions. But conservatives, especially Attorney General
John Ashcroft, have not only defended the guidelines; they have
exerted pressure to prevent judges from departing from the guidelines
in the direction of lenience, as they may do in some cases.

The pressure for toughness in sentencing has also been evident in
Ashcroft's insistence on forcing federal prosecutors to seek the death
penalty when possible. In the Fell case the U.S. attorneys in Vermont
had worked out a deal with Fell's attorneys allowing a guilty plea in
exchange for a sentence of life in prison. Ashcroft rejected the plea
deal, requiring the prosecutors to seek the death penalty.

Against conservative pressure for stiff mandatory penalties, a
countervailing movement has been gaining strength. It is dawning on
people all across the country that mandatory penalties often are not
just, and that harsh sentencing policies have been filling up our
jails. The explosion of prison building in the last 20 years and
escalating corrections budgets are due largely to draconian
sentencing, particularly in drug cases. Vermont is among the states
looking for ways to shorten jail time to curb the growth of the prison

Giving judges discretion has been anathema to conservatives, but
forcing judges to impose severe sentences does not necessarily serve
justice or help end the cycle of crime. Conservatives in Congress will
respond to the Supreme Court's ruling by seeking to force tough
mandatory sentences on judges. But it is time to recognize that rigid
sentencing regimes rob judges of the power to tailor a sentence to
individual circumstances. Greater humanity in sentencing policy will
begin to change us from the gulag nation that we are becoming.
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