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January 18, 2005 - The Boston Globe (MA)

Sound Judgments

By Thomas Oliphant, Globe Columnist

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WASHINGTON - THEY TELL a helpful story on Capitol Hill about Stephen Breyer from back when he was the super-sharp, young staff director for the Senate Judiciary Committee in the 1970s.

It helps understanding how Supreme Court Justice Breyer pulled off an astonishing feat of leadership over the last six months on the politics and values-loaded issue of sentences for criminal violations of US law.

Congress was finishing up some bill and was at the stage where the Senate and House versions of legislation are reconciled in conference committee.

Helping the group of senators, including his boss and then-Judiciary chairman Edward Kennedy, Breyer listened intently to a presentation on a point where the Senate differed from the House. He remarked that the House guys had made a strong argument that deserved consideration.

That got him a sharp glance from the senators, who expect unwavering support from their assistants. It also planted the seed, above all in Kennedy's mind, that Breyer thought like a judge. These days, not enough people do, including many who do judging for a living.

For nearly all of his career in public service, Breyer has been toiling on the topic of how the country's laws should be applied to the people who violate them. It is as vexing an issues as there is, mixing as it does ideology, politics, values, and the meaning of constitutional principles.

It is also vexing because some of the purposes of law clash -- fairness and toughness, concern for society's protection, and concern for the individual, the politics of law and order, and the politics of justice.

Last summer, the court opened a huge can of worms by narrowly ruling that Washington state judges could not add time to a convicted person's jail sentence based on their own findings of fact. The reason, according to the five-justice majority, was that the fact-finding -- about the person's background or character or anything that affected his sentence other than past convictions -- violated his right to have a jury decide facts affecting his liberty.

That decision was contrary to a decision in 2000 involving a person in New Jersey who had two years added to a 10-year term on a weapons crime because the judge decided racial hatred was a motivating factor. The decision was not that hate crimes can't be punished, but that depriving someone of liberty requires factual jury decisions beyond a reasonable doubt.

The effect of the two rulings was not just to toss out most of two states' sentencing guidelines. It also brought into question the procedures in all states; and it brought into question the US government's sentencing system, under which more than 1,000 convicts a week are sentenced.

Last week, the Supreme Court followed the logic of these decisions in one case involving US criminal law but appeared to veer away from it in another. In a 5-4 majority, it decided that the federal sentencing system's guidelines do not have to be followed by trial judges. But in a different 5-4 majority, it decided that they could and should be used in sentencing as long as they were just that, guidelines, and not mandates.

The only justice who swung both ways was Breyer's fellow Clinton appointee, Ruth Bader Ginsberg. But the key influence was Breyer himself. While he dissented from the first decision, he sought to apply it to the second, writing that criminal law needs to "avoid excessive sentencing disparities while maintaining flexibility sufficient to individualize sentences where necessary."

A liberal person might contend that there's a difference, and ought to be one at sentencing time, between a lower-level drug dealer who's a murderer and one who's a drug addict with a disabled wife and a sick kid. A conservative person might contend that all corporate price-fixers and stock-manipulators are not alike. What the country needs is more judges who don't simply reflect the poles of ideology but who work to bridge them when possible.

Breyer has been working to do that for a quarter-century. The effort to rewrite the US criminal code involved left and right, Carter and Reagan, Kennedy and Joe Biden and Strom Thurmond and Orrin Hatch. Breyer was in the thick of the congressional action on sentencing and the implementation of it while on the bench in Boston.

Perhaps the pendulum swung too far toward uniformity, which many judges hated; now it will swing back, risking some chaos and a congressional overreaction. That's life, but that's also the essence of judging.

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