Pubdate: Sun, 16 Jan 2005
Source: Milwaukee Journal Sentinel (WI)
Copyright: 2005 Milwaukee Journal Sentinel


In the spring of 2002, Utah rap record producer Weldon Angelos twice
sold $350 worth of marijuana to a police informant. He kept a gun out
of sight in both transactions - the first time in the center console
of his car, the second time in an ankle holster. What's more, the
police found three handguns in his apartment when they arrested him.

A jury convicted him of dealing pot while armed, and, last November,
U.S. District Judge Paul Cassell handed down a sentence over his own
protests. Citing federal "guidelines" (somewhat of a misnomer since
they were compulsory), the judge complained that he had no choice but
to put the 24-year-old, first-time offender in prison for 55 years for
low-level drug dealing. Cassell, a hard-line conservative appointed to
the bench by the current President Bush, noted that the guidelines
resulted in lighter sentences for worse crimes, such as 15 years for a
three-time child rapist and 19 years for a bomber.

Such out-of-kilter sentencing has been routine in federal courts
during the last two decades. Finally, the U.S. Supreme Court issued a
ruling the other day that may ease the problem. The court changed the
mandatory guidelines to advisory. Exactly how this ruling will play
out is not clear. But it should lessen the rigidity that has often
forced federal judges to mete out punishment far out of proportion to
the crimes for which defendants have been convicted.

The ruling flowed from a string of high court decisions holding -
wisely, in our opinion - that the constitutional right to a trial by
jury means that a jury, not a judge, must make findings about elements
of a case that lengthen a sentence beyond the statutory maximum. The
previous rulings applied directly to state courts but cast a cloud
over federal procedures, where sentencing guidelines specify the range
of punishment a judge can hand down from a jury verdict of guilty but
then calls on the judge to determine whether certain conditions were
present that would require exceeding that range.

One of the two cases that led to the new ruling came from Wisconsin. A
federal jury in Madison found Freddie Booker of Beloit guilty of
possessing with intent to distribute at least 50 grams of crack
cocaine. Though the statute specified a range of 10 years to life for
the crime, the sentencing guidelines changed that range to 17 years
and six months to 21 years and 10 months. But U.S. District Judge John
Shabaz found that Booker likely possessed an additional 566 grams of
crack and obstructed justice - elements calling for a sentence of 30
years to life. Shabaz imposed 30 years.

A 5-4 Supreme Court majority held that, because the sentencing
guidelines were mandatory, they were, for all practical purposes,
statutes. A different 5-4 majority specified the remedy: Make the
guidelines advisory.

The sentencing guidelines are a reform gone awry. The idea was to
bring uniformity to sentencing, so that defendants are treated the
same regardless of race or class or geography. But they took away too
much discretion from judges - and only to shift it to prosecutors, who
often used the draconian sentences to extract plea bargains.

Still, problems remain. For instance, the actual statutes specify much
too wide of a range, as shown by the 10 years to life to which Booker
was exposed. And what will happen with past cases, such as the Angelos
case? The court seemed to discourage revisiting them. But too many
young federal inmates are now unfairly doomed to spend their geriatric
years in prison.

Congress should act, but in a manner that corrects injustices, rather
than restores them. 
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