Pubdate: Fri, 14 Jan 2005
Source: Baltimore Sun (MD)
Copyright: 2005 The Baltimore Sun, a Times Mirror Newspaper.
Bookmark: (Opinion)


IN THE federal court system, few issues have been more contentious
than the sentencing guidelines that Congress passed in the mid-1980s,
ostensibly to make sure that criminal defendants received about the
same time for the same crime.

But federal judges have long complained that the guidelines robbed
them of their discretion in weighing different circumstances that
might pertain to similar crimes.

And defendants and their attorneys complained of onerous sentences
that could not be altered.

Now, the U.S. Supreme Court has restored some measure of sanity into
the process.

While the decision Wednesday is complex, the overall result is

The guidelines, which went into effect in 1987, were meant to address
wide disparities in sentencing, including among different racial and
ethnic groups. They also aimed to make sentences more transparent and

But as time passed, Congress kept adding layers to the system,
allowing sentences to become more excessive and even draconian.

As a practical matter, power shifted from judges, who are meant to be
neutral, to prosecutors, who could virtually determine the outcome of
a case by the charges they set. The entire process became more and
more convoluted as well, making the sentencing guidelines resemble the
tax code.

And the results were still unfair.

That was ultimately the court's view in the cases decided this week.
Freddie J. Booker was convicted by a Madison, Wis., jury of possessing
to distribute more than 50 grams of crack cocaine. After considering
his criminal history and evidence at a post-trial hearing that he had
actually distributed more than 500 grams, the judge increased what
would have been a sentence of nearly 22 years, based on the jury's
findings, to 30 years.

Similarly, Ducan Fanfan was convicted by a jury in Portland, Maine, of
distributing 500 grams of cocaine.

Based on the jury's findings, his maximum sentence should have been 6
1/2 years in prison.

When the government pushed for a longer sentence, based on evidence at
a post-trial hearing that he was responsible for distributing even
more drugs and that he was an organizer of criminal activity, the
judge refused.

That the guidelines allowed judges to increase sentences based on
evidence that the jury did not consider, and under a standard --
preponderance of the evidence -- that was less rigorous than the
jury's finding beyond a reasonable doubt, were key reasons why a 5-4
majority of the Supreme Court found the guidelines unconstitutional.
When it came to fixing the problem, another 5-4 majority ruled that
the guidelines should now be considered "effectively advisory" instead
of mandatory.

Although some of the long-term implications of the rulings are still
being sorted out, this is a welcome and long-overdue development,
suggesting that judges can still defer to the guidelines without being
handcuffed by them. And while the court's decisions bring some much
needed balance to sentencing, they have provoked angry reactions from
some members of Congress. Those members should give the court's
decisions time to settle, and view them as restoring proper checks and
balances, not promoting disrespect. 
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