Pubdate: Tue, 25 Jan 2005
Source: Valley Morning Star (TX)
Copyright: 2005 Valley Morning Star
Contact: http://www.valleystar.com/letters.php
Website: http://www.valleystar.com/
Details: http://www.mapinc.org/media/584
Bookmark: http://www.mapinc.org/topics/federal+sentencing (Federal
 Sentencing)

SOME DISCRETION RETURNS TO JUDGES

It is not difficult to criticize the circuitous way the U.S. Supreme
Court -- acting more like a quasi-legislative body than a court =97 went
about downgrading but not quite eliminating the controversial
sentencing "guidelines" system that Congress set up in 1984. The high
court might have created less confusion if it had simply declared the
entire system unconstitutional and told Congress to try again.

On balance, however, the court got to a constructive result. The
federal sentencing guidelines had created intolerable confusion and
injustice and had to go. The court didn't fix the entire problem, but
it made a respectable start.

Briefly, here's the background: During the 1980s, federal judges were
being criticized both by "tough-on-crime" advocates who condemned
"bleeding heart" judges who handed out lenient sentences and by
civil-rights advocates who claimed African-Americans tended to get
disproportionately long sentences. Some scholars dispute the scope of
the disparities, but the perception was that sentencing for the same
or similar crimes was wildly inconsistent from one part of the country
to another.

So Congress created the U.S. Sentencing Commission, empowered to set
up sentencing guidelines for various crimes. The guidelines turned out
to be more rigid than most judges preferred, setting up a mandatory
floor for sentencing and making it difficult to revise a sentence
downward based on mitigating circumstances.

By 1997, a survey of federal judges found that two-thirds of them
found the guidelines unnecessary and many believed they were downright
harmful to the administration of justice.

The sentencing commission was challenged as unconstitutional since, in
effect, it performed legislative functions with no accountability to
the people or to any of the three branches of government. But the high
court upheld its constitutionality in 1989.

Appellate lawyers tried a different path, and last year in Blakely v.
Washington, the court found unconstitutional a state system based on
the federal guidelines. The reason? Sentences could be enhanced --
increased -- by a judge based on factors the jury hadn't considered or
ruled upon. That violated the guarantee of trial by jury.

Would the same criticism apply to the federal sentencing system?
Understanding the confusion that the Blakely decision would create,
the court took up two drug cases -- U.S. v. Booker and U.S. v. Fanfan =97
that raised similar issues. It ruled, 5-4, that federal judges no
longer are bound by the misnamed "guidelines."

Instead of eliminating the guideline system, however, a separate 5-4
majority ruled that the guidelines would henceforth be "effectively
advisory," giving judges more discretion to depart from them based on
individual circumstances.

The major effect will be on white-collar crimes and drug cases, which,
according to the Sentencing Project, account for 55 percent of federal
prisoners. In the future, drug offenders are likely to get less severe
sentences, and an unpredictable number of prisoners currently serving
time could have their sentences reviewed.

The effect on major crimes like murder, assault, robbery and the like
will be minimal since most of these crimes are handled at the state
level. In cases where what was proven to the jury supported a lower
sentence but facts known later to the judge supported a more severe
sentence, the defendant could request resentencing, but the government
could request a resentencing in which a jury decided on the
sentence-enhancing facts later learned by the judge.

The decision does not touch certain "mandatory minimum" sentences that
Congress enacted during a flurry of get-tough-on-drugs legislation
during the late 1980s. Those laws have cost taxpayers dearly while
doing little or nothing to reduce illicit drug use, but it will be up
to Congress to change them.

A logical step would be for Congress to enact new laws calling for
treatment instead of prison in certain drug cases. Whether Congress is
in the mood for such rationality is another question.

Congress probably should wait a while to see how the new system
mandated by the high court (many details of which are still fuzzy)
works in practice. If obvious injustices emerge, it can act then -- and
probably create new problems in the process.
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MAP posted-by: SHeath(DPFFLorida)