Pubdate: Mon, 24 Jan 2005 Source: Tennessean, The (TN) Copyright: 2005 The Tennessean Contact: http://www.tennessean.com/ Details: http://www.mapinc.org/media/447 Bookmark: http://www.mapinc.org/topics/federal+sentencing (Federal Sentencing) RULING RETURNS SENSE TO FEDERAL SENTENCING The U.S. Supreme Court's recent two-part decision on federal sentencing guidelines will anger some congressional critics and confuse many others. Nevertheless, the decision inserts a measure of badly needed judgment into the system. The court basically said that the guidelines should be advisory, not rigid mandates. In the first part of the ruling, a five-justice majority determined that giving judges the power to make factual findings that increased sentences beyond a jury's conclusion was an unconstitutional abridgement of a defendant's right to trial by jury. In the second part of the decision, a different five-justice majority concluded that federal judges should use the guidelines as advisory tools, not mandates. Anything that hints of judicial discretion will drive some members of Congress mad. Conservative critics in Congress have railed that so-called "activist" federal judges will use their discretion to be lenient with criminals. They want federal judges to be required to force every sentencing decision into a cookie-cutter mold. Those congressional critics are likely to come back with legislation to do just that, prolonging the antagonism between the judiciary and the legislative bodies of government. But the courts will be equally busy as lawsuits pile up to take advantage of the ruling. The latest numbers put 60,000 defendants every year in federal court. And there are prisoners who haven't exhausted their appeals. The Supreme Court's rulings assure confusion for some time. Yet what is truly indefensible is the status quo. Under the federal sentencing guidelines, as well as those of some states, judges in the sentencing phase were required to consider factors of the crime that were never considered by a jury. The most basic problem, however, is that the guidelines forced the judicial system to categorize crimes - with all their variables - into rigid molds. Under that system, the prosecutor's decision about the initial charges becomes all powerful. The sentencing controversy isn't about getting judges and justices right or about making Congress do better. It's about getting justice right. The Supreme Court has simply found a better way to accomplish that noble goal. - --- MAP posted-by: Richard Lake