Pubdate: Sun, 23 Jan 2005
Source: Portland Press Herald (ME)
Copyright: 2005 Blethen Maine Newspapers Inc.
Contact:  http://www.portland.com/
Details: http://www.mapinc.org/media/744
Author: Nancy Grape

LET JUDGES, NOT CONGRESS, DO SENTENCING

Let's go back a few days to the second inauguration of President George W. 
Bush and tweak that solemn Capitol scene just a little.

Imagine for a moment that when Bush raised his right hand to take the oath 
of office from Chief Justice William H. Rehn-quist, Rehnquist had leaned 
forward to say quietly, "Sir, put your hand down, if you would. Let's make 
a little change in the program. Instead of my giving you the oath of 
office, let's have you give it to me. I've always wanted to be president."

Dignitaries, foreign and domestic, would shiver as whispers of Rehnquist's 
coup d'oath began to spread. Protesters would stand dumbstruck. Security 
forces, trained to attack, would scan the scene. "Attack, yes," their 
razor-sharp instincts would tell them, "but attack whom?"

Thus would an assault by one branch of American government - the judiciary 
- - on another - the executive - claim the nation's attention.

Ah, but change the setting, change the two branches of government at odds, 
and a version of that "Gimme, I want it" drama has been playing for more 
than two decades. Its players include some dug-in members of Congress who 
like to kick dust in the eyes of judges on the federal bench.

Court Rules Twice

Welcome to the Supreme Court's two-part decision on federal sentencing 
guidelines.

In two 5-4 votes, with Associate Justice Ruth Bader Ginsburg the critical 
swing vote each time, the Supreme Court this month affirmed that mandatory 
federal sentencing guidelines formulated by the U.S. Sentencing Commission 
violated defendants' Sixth Amendment right to trial by jury. The court said 
the guidelines should be treated by lower-court judges as advisory, not 
mandatory.

The commission is an independent agency within the judicial branch that was 
established by Congress in 1984.

Frank O. Bowman, a law professor at Indiana University, cut through the 
legalese to spell it out. "This is a story about a fight between branches 
of the federal government for sentencing power," Bowman told The New York 
Times.

The reasons for the "fight" are obvious. No member of Congress, with the 
possible exception of an obscure congressman from San Francisco or an 
unknown independent from Vermont, ever staked a political future on being 
soft on crime. Being hard on criminals pays off.

And, for politicians with luck, the realities of criminal sentencing - the 
plea bargains, the "good time" subtracted from sentences for behaving in 
prison, the paroles and other reductions - never catch up with the tough 
public rhetoric.

Neither do the realities of who is being sentenced.

The two-part Supreme Court decision came on a case that involved 
differences in sentences imposed on Freddie J. Booker, convicted on drug 
charges in federal court in Madison, Wis., and Ducan Fanfan, convicted in 
federal court in Portland of distributing 500 grams of cocaine.

The nature of their offenses shouldn't surprise us. According to a 
comprehensive review that the Sentencing Commission issued in November, 
"Drug trafficking offenses have comprised the largest portion of the 
federal criminal docket for over three decades."

The number of offenders "has grown every year, reaching 25,835 offenders in 
2002, or 40.4 percent of the total criminal docket."

Economic offenses - larceny, fraud and other white-collar crimes - come in 
second, followed by immigration and firearms offenses.

At best, the guidelines play a limited role in keeping the kind of killers 
on "Law and Order" off the streets.

"Unlike the state courts," the Sentencing Commission reported, "the federal 
courts sentence relatively few offenders convicted of violent crimes." In 
2002, for instance, "murder, manslaughter, assault, kidnapping, robbery and 
arson constituted less than 4 percent of the total federal criminal docket."

All of which suggests there's not only room for judicial discretion in 
imposing sentences on those convicted in federal courts, but a genuine need 
for thoughtful analysis and discretion as well.

Whenever a person is nominated for a judicial post in Maine, the 
Legislature's Judiciary Committee listens carefully to testimony about the 
nominee's "judicial temperament." Is this a person who can carefully, 
coolly - judiciously - assess the law as it applies to the conduct of a 
case and, if required, to a defendant's sentence? On that weighing of 
temperament, the fate of a governor's nominee may well be decided.

Yet the Sentencing Commission, in reviewing why Congress established 
mandatory guidelines two decades ago, treats judicial temperament almost as 
a malady to be eliminated.

Range Of Penalties

Before mandatory guidelines existed, the commission said, "federal crimes 
carried a broad range of penalties and federal judges had the discretion to 
choose the sentence they felt would be most appropriate. They were not 
required to explain their reasons for the sentence imposed and their 
sentences were largely immune from appeal."

At best, that's a reasonable argument for encouraging federal judges to 
cite clearly the reasons for sentences they impose, but it is not a 
compelling argument for chaining them to mandatory guidelines.

Instead, members of Congress should exercise some judicial temperament of 
their own in the session ahead.

"The professional judiciary haters in the Congress are going to have a lot 
of grist for the mill," Rep. Adam B. Schiff, D-Calif., predicts.

But calm voices might still prevail. "Congress should resist the urge to 
rush in with quick fixes that would only generate more uncertainty and 
litigation and do nothing to protect public safety," Vermont Sen. Patrick 
Leahy, the Judiciary Committee's ranking Democrat, told the Times.

To be trusted, courts must stand above politics. Just think about Bush and 
Rehnquist on that Capitol podium again.
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MAP posted-by: Beth