Pubdate: Sat, 15 Jan 2005 Source: Detroit Free Press (MI) Copyright: 2005 Detroit Free Press Contact: http://www.freep.com/ Details: http://www.mapinc.org/media/125 Bookmark: http://www.mapinc.org/topics/federal+sentencing LET JUDGES BE JUDGES In rewriting sentencing rules, Congress should make proof the central standard This week's seemingly contradictory U.S. Supreme Court decisions will no doubt persuade Congress to accept Justice Stephen Breyer's invitation to revisit federal sentencing guidelines. But lawmakers are going to have to take a sober look through every word of both decisions and take time to craft the proper remedy. The broader discretion which the rulings granted to judges are welcome to many, but it is hardly the uniformity that Congress sought in passing sentencing guidelines in the first place. Both decisions were 5-4, but with different combinations of justices. In the first, the court majority said judges can impose sentences harsher than the guidelines only if the facts triggering that punishment have been proved to a jury beyond a reasonable doubt. In other words, the rigid formula handed down by successive Congresses in search of cookie-cutter justice unfairly and unconstitutionally violated the Sixth Amendment right of defendants to trials by juries of their peers. The second ruling then made that blueprint advisory instead of mandatory, in an effort to preserve some shell of the guidelines. The high court effectively said judges should issue sentences based on a wide variety of factors -- i.e. evidence and circumstances as well as the guidelines. That judicial discretion mitigates the Sixth Amendment concerns, the majority said. So the ruling that declared the guidelines flawed acknowledged what Congress wanted and showed how they could work: by ensuring that before any sentence is imposed, the supporting facts are proved to a jury. But the ruling that tried to maintain the guidelines actually restored the ability of judges to deviate from them, the opposite of Congress' goal. These twin decisions hardly brought the clarity attorneys have been craving. But they're also unlikely to have broad impact on the federal court system's 64,000 annual cases, 97 percent of which are decided by plea bargain. Some sentences may become appropriately milder, but despite wails to the contrary from the Justice Department, they shouldn't become "wildly" inconsistent. Judges and juries still have guidelines and evidence to lead them. Lawmakers have threatened to track judges who deviate from the guidelines and target them for retribution. With the high court now saying the guidelines were at least unconstitutional and at best should be advisory, Congress ought to drop those plans and concentrate on its own role in government. Now, that likely includes redrafting the sentencing guidelines. As they launch that task, lawmakers would do well to remember that judges and juries both have to consider the facts of the case in front of them, not simply hew to a rigid set of theoretical standards that don't account for the realities of a case. Of course, that will require Congress to trust the greatest system of justice in the world, something it has been loath to do for decades. - --- MAP posted-by: Richard Lake