Pubdate: Sat, 15 Jan 2005
Source: Detroit Free Press (MI)
Copyright: 2005 Detroit Free Press


In rewriting sentencing rules, Congress should make proof the central

This week's seemingly contradictory U.S. Supreme Court decisions will
no doubt persuade Congress to accept Justice Stephen Breyer's
invitation to revisit federal sentencing guidelines. But lawmakers are
going to have to take a sober look through every word of both
decisions and take time to craft the proper remedy.

The broader discretion which the rulings granted to judges are welcome
to many, but it is hardly the uniformity that Congress sought in
passing sentencing guidelines in the first place.

Both decisions were 5-4, but with different combinations of justices.
In the first, the court majority said judges can impose sentences
harsher than the guidelines only if the facts triggering that
punishment have been proved to a jury beyond a reasonable doubt. In
other words, the rigid formula handed down by successive Congresses in
search of cookie-cutter justice unfairly and unconstitutionally
violated the Sixth Amendment right of defendants to trials by juries
of their peers.

The second ruling then made that blueprint advisory instead of
mandatory, in an effort to preserve some shell of the guidelines. The
high court effectively said judges should issue sentences based on a
wide variety of factors -- i.e. evidence and circumstances as well as
the guidelines. That judicial discretion mitigates the Sixth Amendment
concerns, the majority said.

So the ruling that declared the guidelines flawed acknowledged what
Congress wanted and showed how they could work: by ensuring that
before any sentence is imposed, the supporting facts are proved to a
jury. But the ruling that tried to maintain the guidelines actually
restored the ability of judges to deviate from them, the opposite of
Congress' goal.

These twin decisions hardly brought the clarity attorneys have been
craving. But they're also unlikely to have broad impact on the federal
court system's 64,000 annual cases, 97 percent of which are decided by
plea bargain. Some sentences may become appropriately milder, but
despite wails to the contrary from the Justice Department, they
shouldn't become "wildly" inconsistent. Judges and juries still have
guidelines and evidence to lead them.

Lawmakers have threatened to track judges who deviate from the
guidelines and target them for retribution. With the high court now
saying the guidelines were at least unconstitutional and at best
should be advisory, Congress ought to drop those plans and concentrate
on its own role in government.

Now, that likely includes redrafting the sentencing guidelines. As
they launch that task, lawmakers would do well to remember that judges
and juries both have to consider the facts of the case in front of
them, not simply hew to a rigid set of theoretical standards that
don't account for the realities of a case.

Of course, that will require Congress to trust the greatest system of
justice in the world, something it has been loath to do for decades.
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MAP posted-by: Richard Lake