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. - --- MAP posted-by: Beth