Pubdate: Fri, 14 Jan 2005 Source: Newsday (NY) Copyright: 2005 Newsday Inc. Contact: http://www.newsday.com/ Details: http://www.mapinc.org/media/308 Bookmark: http://www.mapinc.org/topics/mandatory+sentencing Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing) HIGH COURT'S GIFT TO JUDGES They Should Be Judicial in Using New Freedom to Sentence the Guilty Federal judges, freed from the shackles of mandatory sentencing guidelines by the Supreme Court Wednesday, should be very careful in exercising their new discretion to sentence defendants as they see fit. The decades-old system of rigid guidelines deprived federal defendants of their Sixth Amendment right to trial by jury. The court made that clear Wednesday when it ruled that the guidelines impermissibly required judges to tack on additional prison time based on facts jurors never heard. The high court made the guidelines advisory rather than mandatory, leaving it to appeals courts to decide when a sentence is unreasonable. Prison sentences must now fall within the minimum and maximum times spelled out by statute. Judges are no longer forced to follow guidelines that require stiffer penalties based on findings in post-trial sentencing proceedings of such things as the number of victims in a fraud or a defendant's leadership role in a criminal conspiracy. But Congress imposed the guidelines 21 years ago to eliminate arbitrary differences in the amount of prison time imposed by various judges around the country for similar crimes. Disparities involving race were especially intolerable. The guidelines did deliver greater consistency. An unwise return to the old, unreasonable sentencing disparities would be an engraved invitation to Congress to wade in with new restrictions. The court itself said the ball was now in Congress' court. Lawmakers could, for instance, make the guidelines mandatory once again and comply with the Constitution by simply requiring that every fact considered in sentencing be proved beyond a reasonable doubt before a jury. That would be an appropriate response to a resurgence of wildly disparate sentences. But before going down that road, Congress should give the new era of advisory guidelines ushered in by the Supreme Court a chance to work. There is an abiding tension between lawmakers and judges over the hot-button issue of criminal penalties. Mandatory sentences and sentencing guidelines have been used by Congress and many state legislatures to wrest control away from judges who are too lenient to suit the politicians' tastes. But judges need to have the latitude, within statutory limits, to fit individual punishments to individual circumstances. That's what the Supreme Court has delivered. - --- MAP posted-by: Richard Lake