Pubdate: Thu, 16 Dec 2004
Source: Atlanta Journal-Constitution (GA)
opinion_141cc313d68301640065.html
Copyright: 2004 The Atlanta Journal-Constitution
Contact: http://www.ajc.com/opinion/content/opinion/letters/sendletter.html
Website: http://www.accessatlanta.com/ajc/
Details: http://www.mapinc.org/media/28
Author: John Lewis and Robert Wilkins
Bookmark: http://www.mapinc.org/racial.htm (Racial Issues)
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)

FIX SENTENCING GUIDELINES

Move To End Disparity Along Racial Lines Hasn't Worked

Any day now, the U.S. Supreme Court is expected to announce its
decision in the Booker and FanFan cases, which raise the issue of
whether the federal sentencing guidelines violate the Sixth Amendment
right to have a jury determine those facts that can increase the
length of any potential sentence.

Many are hoping that the Supreme Court will strike down the
guidelines, which have been lambasted by a diverse group of judges,
practitioners and academics. Others are urging the court to uphold the
guidelines, and they are preparing quick legislative "fixes" that
would allow Congress to keep the present guidelines largely intact
should the court strike them down.

Before the enactment of the guidelines, federal judges could consider
a broad range of evidence and impose the sentence they believed most
appropriate in each case. When Congress created the U.S. Sentencing
Commission in 1984, its principal (and laudable) goal was to draft
guidelines that eliminated discriminatory sentencing disparities. This
approach initially appealed to minority communities because of its
promise to sentence everyone fairly.

However, the guidelines, along with mandatory minimum drug sentences
enacted by Congress since 1984, have been roundly criticized as unduly
harsh, unduly rigid, removing too much discretion from judges and
shifting too much power to prosecutors. The prestigious American
College of Trial Lawyers (a group that includes several prominent
former federal prosecutors) recently urged Congress to abolish the
current guidelines, calling them "an experiment that has failed."

Indeed, several federal judges have resigned, in whole or in part
because of their disgust with the guidelines. The latest was Judge
Robert Cindrich of Pittsburgh, who said last February, "When the law
provides a result that is repugnant, we must still follow the law. . .
. And you can only do that so many times before you start to wonder,
'How many more times am I going to put my name on this sentence that I
don't believe in?' "

One such example of unjust sentencing is Kemba Smith. Smith was a
first offender who never used, sold or handled drugs and was connected
with a crack cocaine ring only through actions done at the behest of
her abusive boyfriend. Nonetheless Smith received a 24-year federal
sentence, and she won release from prison after six years only because
of intense media coverage and a grant of clemency from President Bill
Clinton. Most defendants like Smith are not so lucky.

Unfortunately, rather than reducing unfair racial disparities in
federal sentencing, the evidence shows that the guidelines made the
problem worse. Just before Thanksgiving, the Sentencing Commission
released a report assessing whether the federal sentencing system has
achieved the goals of the 1984 reforms. It confirmed what many
observers have long known: In the past 20 years, the federal prison
population has gotten significantly darker.

The report also shows that while the average federal prison sentence
for black offenders was about five months longer than for whites in
1984, by 2001, the average sentence for blacks was almost 30 months
longer. According to the report, at least some of the disparity is
because of controversial mandatory minimum drug sentences and
guidelines that require powder cocaine defendants (a racially varied
group) to traffic 100 times more cocaine before they receive the same
sentence as crack cocaine defendants (who are predominantly black).

The report should serve as a catalyst for major discussion about the
racial impact of federal sentencing policy, though, to date, it has
received scant attention. Of course, data showing vast racial
disparities do not necessarily prove that the federal sentencing
system discriminates.

But a critical goal of the federal sentencing guidelines was to
eliminate unfair racial disparities in sentencing, and the Sentencing
Commission has now concluded that "the sentencing guidelines and
mandatory minimum statutes have a greater adverse impact on black
offenders than did the factors taken into account by judges in the
discretionary system in place immediately prior to guidelines
implementation."

Racial disparity in incarceration has been a moral blight on America
from the beginning days of our criminal justice system. That this
disparity continues despite (and indeed because of) the guidelines
highlights the need for serious thinking and action on the issue.

Regardless of whether the Supreme Court strikes them down in the
Booker and FanFan cases, Congress should repeal the federal sentencing
guidelines along with the mandatory minimum drug sentences. Then,
Congress should allow the Sentencing Commission to draft new
guidelines that treat the minority community fairly. The experiment
with the federal sentencing guidelines has failed --- it's time to go
back to the drawing board.

Washington attorney Karl Racine contributed to this
column.
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