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January 15, 2005 - The Des Moines Register (IA)

Editorial: Allow Federal Judges Discretion In Sentencing

By The Register Editorial Board

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Blakely News Archive

The U.S. Supreme Court's 5-4 decision striking down federal criminal-sentencing rules was a welcome step toward restoring judges' discretion and flexibility. But the ruling also threw gasoline on a smoldering dispute between Congress and the federal courts.

The court declared that sentencing "guidelines" created by Congress in 1987 violate criminal defendants' Sixth Amendment right to trial by jury.

The ruling cheered federal judges who have chafed under the rigid rules. At the same time, the court invited Congress to come back with something even worse. History shows that lawmakers will be only too happy to oblige.

The so-called guidelines - in fact mandatory rules written by a sentencing commission - prescribed uniform prison sentences for federal crimes. Sentences were based on a mathematical formula broken down into six-month increments that factor in the myriad details of a particular crime.

Those factors - whether a gun was used, the amount of illegal drugs involved, the defendant's criminal history - could add or subtract years in a prison sentence.

The court found the sentencing rules unconstitutional because judges factored them into the calculation after conviction. The factors weren't proved before a jury, as explicitly required by the Sixth Amendment. On this point, the court was exactly right:

Under the rules, prosecutors could introduce a long list of "facts" in the post-conviction sentencing process that could double a convict's time served in prison.

That left the court to decide what should guide judges. Dividing along a different 5-4 fault line, the court said the sentencing guidelines are, in fact, just guidelines. Federal judges are free to apply them or not, and the question of whether they get it right will be determined by federal appeals courts.

Although that makes sense, it is not going down well with members of Congress who don't trust federal judges to be tough on criminals. They have a simple solution: Enact more mandatory minimum sentences that would completely tie judges' hands.

Thus, the sentencing ruling is certain to aggravate the battle between Congress and the courts over which side has the upper hand in criminal sentencing.

The reality, however, is that in creating the guidelines, Congress transferred the real power to federal prosecutors: Ninety-seven out of 100 federal criminal defendants plead guilty in deals cut with U.S. attorneys to avoid risking even longer sentences.

Thus, career prosecutors make critical decisions in the vast majority of cases before they get to the courtroom. And, unlike federal judges, U.S. attorneys are not insulated by lifetime tenure from shifting political winds.

The federal sentencing process has put more than 175,000 men and women in federal prisons. Many of them, convicted of low-level drug crimes, will spend 20 or 30 years behind bars.

There are no simple fixes for this badly broken system.

A better approach would be for Congress to set upper and lower limits for prison sentences and leave it to the judges who are closest to each case to make the right decision.

For now, Congress ought to leave things alone and see how the process works under the court's approach.

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