Pubdate: Mon, 27 Mar 2006
Source: Milwaukee Journal Sentinel (WI)
Copyright: 2006 Journal Sentinel Inc.
Contact: http://www.jsonline.com/news/editorials/submit.asp
Website: http://www.jsonline.com/
Details: http://www.mapinc.org/media/265
Bookmark: http://www.mapinc.org/find?244 (Sentencing - United States)
Bookmark: http://www.mapinc.org/pot.htm (Marijuana)
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

DISCRETION WHERE IT BELONGS

Early last year, the nation's top court changed how federal judges set
the sentences they issued. Before the Supreme Court decided United
States vs. Booker, judges had to fit sentences within specific limits.
Afterward, they could treat those limits as suggestions, not mandates.

The switch served the cause of justice. The federal mandatory minimums
led to too many unfair sentences, far out of proportion to the crime.
But that imbalance didn't happen to be the reason the Supreme Court
struck down the mandatory nature of the sentencing guidelines.

Rather, the court faulted the sentencing scheme because it had a judge
doing what is rightly a jury's work - that is, finding whether
elements of the crime were present that could lengthen sentences. So
it's possible to restore the mandates in such a way as not to upset
the high court. In fact, Rep. Jim Sensenbrenner, the Menomonee Falls
Republican who chairs the House Judiciary Committee, is hinting he
will seek to do just that.

He mustn't. The old system straitjacketed judges too much, such as
Utah's U.S. District Judge Paul Cassell, known as a hard-line
conservative. He lamented from the bench that he had no choice but to
put a first-time offender in prison for 55 years for dealing
marijuana. Justice demands that judges be allowed to exercise
discretion. Otherwise, you may as well replace him or her with a
computer program.

The rationale behind mandatory sentencing is that it keeps punishment
uniform. But it only seems to do so. It simply transfers discretion
from the judge to the prosecutor, who exercises it by choosing which
charges to bring or whether to bring any at all. Prosecutors use the
draconian sentences as a club to extract plea bargains.

The system allows U.S. attorneys to dish out leniency in exchange for
cooperation. Thus, suspects with much information to trade can get
light sentences. One consequence is that drug ringleaders have gotten
much shorter sentences than defendants only tangentially connected to
the ring, such as a leader's girlfriend, since the latter has little
information to swap. Giving the judge discretion can prevent such injustices.

In a report delivered to the Judiciary Committee last week, the U.S.
Sentencing Commission found that judges have conformed with sentencing
guidelines 86% of the time - compared with 91% during one period
before Booker and 94% during another period. (Judges could deviate
from the guidelines under special circumstances.) In other words, the
difference pre- and post-Booker isn't stark. Also, on average, the
sentences have been slightly longer since the ruling.

Judges are by and large heeding the guidelines. Yet they retain the
ability to depart from them in the interest of justice. Congress
mustn't take that flexibility away again. 
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MAP posted-by: Richard Lake