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January 14, 2005 - The Boston Globe (MA)

Editorial: Judicious Leeway

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THE SUPREME Court has given the federal judicial system the opportunity to benefit from sentencing guidelines without the rigid strictures contained in the federal sentencing law. Even though some members of Congress are angry that the court nullified part of that law, they ought to delay any adjustment until judges have had a chance to work under the revised system.

A five-justice majority said the sentencing law gave prosecutors and judges too much discretion in toughening a sentence after the jury rendered a guilty verdict. Prosecutors were allowed to present evidence to the judge before sentencing that was unavailable to the jury and met a lesser standard of proof.

The justices, in an opinion written by John Paul Stevens, concluded that this procedure abridged a defendant's right to a trial by jury as guaranteed by the Sixth Amendment to the Constitution.

But the court did not rule that prosecutors were barred from presenting this additional evidence. It was Justice Stephen G. Breyer, who disagreed with Stevens's conclusion, who wrote the remedy section of the opinion. He said judges could still receive the background information but that the sentencing guidelines themselves would be advisory, not mandatory.

Breyer did not mention it by name, but the opinion voids the Feeney Amendment, approved by Congress in 2003 to drastically limit federal judges' discretion in sentencing.

Named after its sponsor, Representative Tom Feeney, Republican of Florida, it was a reaction to judges' imposition of sentences lighter than those in the guidelines. As many judges know, this amendment was an unwarranted attack on judicial autonomy.

When it comes to sentencing, judges know the facts of the case and the circumstances that have shaped a defendant's actions far better than Congress. Judges also deserve the benefit of additional evidence supplied by prosecutors. But prosecutors, like Congress, tend to prefer long sentences, rigidly imposed.

Ninety-seven percent of cases in federal court result in plea bargains, in which a prosecutor can reduce a charge in exchange for a defendant's cooperation. The extraordinary leeway allowed prosecutors ought to be matched by flexibility for judges. Breyer's decision puts the federal judicial system in better balance.

"The ball now lies in Congress' court," Breyer wrote. As expected, Feeney denounced the ruling as an "egregious overreach," and Senator Arlen Specter, Republican of Pennsylvania, promised remedial legislation.

The Feeney Amendment was rushed, without hearings or other careful consideration of its impact, onto a bill to protect children from kidnappers. Congress should not make the same mistake again. It should allow the federal judiciary time to adapt the sentencing guidelines to the needs of justice.

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