Pubdate: Thu, 13 Jan 2005 Source: Chicago Sun-Times (IL) Copyright: 2005 The Sun-Times Co. Contact: http://www.suntimes.com/ Details: http://www.mapinc.org/media/81 Bookmark: http://www.mapinc.org/topics/sentencing+guidelines Bookmark: http://www.mapinc.org/opinion.htm (Opinion) Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing) HIGH COURT TWEAKS RULES IN THE INTEREST OF FAIRNESS Justice is a quest for fairness. But fairness can be elusive. In the 1980s, the nation became concerned with sentencing disparity -- the same crime that earned a felon a decade in prison in, say, Omaha, might draw only two years if committed in Chicago. That wasn't fair. So in 1986 Congress set mandatory minimum sentencing guidelines establishing fixed punishments that were uniform nationwide. The guidelines first applied to drug crimes. Judges could consider just three factors in picking a sentence: the type of drug involved, the quantity and the record of the defendant. They could also reduce a sentence based on a defendant's cooperation with authorities. This led to all sorts of dire unexpected consequences. Instead of the same crime getting wildly differing sentences in different parts of the country, now we had wildly differing cases getting the same sentence if they fit within rigid guidelines. Judges could not consider factors such as motivation -- a person duped into carrying drugs was treated the same as a hardened dealer. And the provision to reduce sentences for cooperation ended up rewarding higher-ups in drug operations -- who had more knowledge to trade with authorities -- while throwing the book at low-level mules with no one to rat out. On Wednesday the Supreme Court issued two opinions that should have a huge impact in reducing the unfairness in the federal sentencing system. First, it ruled that judges, in applying the guidelines, cannot take into account facts not established in court. In other words, in sentencing someone convicted of selling 100 grams of cocaine, the judge cannot factor in the felon's sale of 80 more grams if that wasn't proven in court, since doing so would violate the Sixth Amendment -- basically punishing citizens for something not proved at a trial. Second, the court disposed of the mandatory aspect of the guidelines, making them advisory. This is important because for years judges complained they were handcuffed by the rules, forced to impose sentences harsh beyond what the facts before them warranted. More than one federal judge resigned rather than uphold the system. This pair of rulings -- one reducing judicial leeway, limiting a judge's ability to determine facts outside of trial, and one expanding freedom to impose sentences that strike the judge as reasonable -- taken together have the effect of making our sentencing system more humane and fair. The Supreme Court called upon Congress to now revisit its guideline system, and we hope that it does so in full knowledge of the problems of the past. The federal prisons are packed with non-violent drug offenders who couldn't be released -- until now -- no matter how their circumstances might demand it. We believe this is an important step toward a fairer system of justice.