Pubdate: Sat, 29 Jan 2005
Source: Wisconsin State Journal (WI)
Copyright: 2005 Madison Newspapers, Inc.
Contact:  http://www.wisconsinstatejournal.com/
Details: http://www.mapinc.org/media/506
Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing)
Bookmark: http://www.mapinc.org/prison.htm (Incarceration)

PUT THE JURY BACK IN THE JURY SYSTEM

One of the most important principles of our justice system is this: In
criminal cases an individual on trial has the right to have a jury of
his peers standing between him and the power of the government.

Thankfully, that principle formed the foundation of the Supreme
Court's decision this month to downgrade the power of federal
guidelines to dictate the sentences imposed on criminals.

That's why Congress ought to refrain from any hasty reaction to the
court's decision.

The ruling, prompted in part by a case from a Madison courtroom,
placed in doubt the amount of influence the sentencing guidelines will
have in the future. Thus, it invited lawmakers to rush in with
legislation to fix the constitutional problems the court identified
and to restore federal authority over sentences. In fact, the court's
majority opinion noted that "the ball now lies in Congress' court."

But lawmakers would be smart to hold that ball and watch how the
decision is applied by judges and juries. The ruling was a victory for
the jury system. That victory should stand.

The question the Supreme Court took up had roots in the development of
the sentencing guidelines back in the 1980s. Congress wanted to bring
uniformity to sentencing to address complaints that two people
convicted of the same crime could receive widely disparate sentences,
depending on where the cases were prosecuted. But Congress also wanted
to get tough on crime in response to complaints that "liberal" judges
were letting criminals off with light sentences.

So Congress created a U.S. Sentencing Commission, which developed
guidelines establishing ranges of sentences to apply throughout the
country and required judges to boost criminals into higher ranges
based on facts never considered by the jury.

The result was a rigid system that left little room for mitigating
circumstances and forced judges to knowingly impose unjust sentences.
Moreover, the guidelines created a conflict between the get-tough-
on-crime mandate and the constitutional right to trial by jury. That
conflict reached the Supreme Court in a case that combined two federal
sentencing cases, one from Maine and one from Wisconsin.

In the Wisconsin case, a federal jury in Madison found Freddie Booker
of Racine guilty of possessing and distributing more than 50 grams of
cocaine base. Judge John Shabaz, acting according to the sentencing
guidelines, considered other facts, never put before the jury, to
increase Booker's sentence by more than eight years. Those facts
included Shabaz's finding that Booker committed perjury during the
trial and Booker's admission that he had sold additional cocaine.

Booker is a drug dealer unworthy of sympathy. But his case raised an
important question. Isn't the accused's constitutional right to trial
by jury violated if the sentence is based on facts the jury never heard?

Yes, decided the Supreme Court.

In a second opinion in the same case, the court decided against
overturning the guidelines altogether. Instead, the court ruled that
the guidelines could remain as advice to judges, who could use their
own discretion to increase or reduce sentences.

The second opinion raises the risk that some judges might run amok
with their discretion. But clearly, the discretion of a judge who has
presided over the case will usually be preferable to dictates imposed
by lawmakers from afar.

Congress may eventually need to clarify the role of the guidelines.
But for now, lawmakers should accept the court's decision to rein in
their authority over judicial sentencing.
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MAP posted-by: Larry Seguin