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August 9, 2004 - The Philadelphia Inquirer (PA)

Let Judges Do Their Job

By Erik Luna, associate professor of law at the University of Utah

A week ago, the U.S. Supreme Court agreed to hear a pair of cases that may well determine the future of the national government's punishment scheme - also known as the federal sentencing guidelines.

I can't help humming the refrain from R.E.M.'s 1987 rock ditty: "It's the end of the world as we know it, and I feel fine." Punishment in U.S. courts has run amok since federal lawmakers launched the current punishment system in the 1980s, and the Supreme Court's ruling could provide the impetus to raze this regime - and not a minute too soon.

The case that incited this uproar and motivated the Court's action, Blakely v. Washington, would seem to affect only one aspect of federal sentencing. In Blakely, the Supreme Court invalidated a state scheme that permitted increased punishment based on factors neither admitted by the defendant nor proven to a jury. That state approach, now rendered invalid, is virtually identical to the federal guidelines. The consequences appear obvious.

The court's holding also undermined some of its most constitutionally obnoxious recent rulings, including cases that approved drastic increases in punishment based on conduct that was never charged or, even worse, alleged crimes for which the defendant was actually acquitted.

But the decision does not touch any number of perversions and injustices under the sentencing guidelines. Unknown to most Americans, punishment in federal courts is set not by elected lawmakers but by an administrative agency, the U.S. Sentencing Commission, fittingly described by Justice Antonin Scalia in 1989 as "a sort of junior-varsity Congress" in contravention of the constitutional design.

The commission has created a 258-box Parcheesi-style grid of all potential punishment ranges for federal offenders, ignoring individual differences among defendants. Moreover, the rules forbid judges from considering a variety of seemingly relevant details - such as the defendant's age, employment history, family ties and responsibilities, public service, and charitable works.

Those sentenced in federal court are stripped of their individuating traits (both good and bad), placed into uniform groups that belie real differences, and then crammed into tight-ranged pigeonholes of punishment.

Congress has made things much worse of late, including last year's Feeney Amendment, which all but ended the ability of judges who assign sentences below the guidelines range and started a congressional blacklist of judges who try to do so without the approval of federal prosecutors.

The justification seems hard to fathom, but the consequences are clear: Prosecutors, not judges, have become the true sentencers in the federal system. And that is the greatest crime of the current regime: Federal judges - the most qualified and trustworthy decision-makers in national government - have been rendered impotent at sentencing.

A constitutionally sound and morally just solution would start all over, creating real guidelines that guide rather than dictate and permit the entirety of an offender's situation and his offense to be taken into account. This would not mean a punishment free-for-all. Trial judges would have to provide written explanations for their application and/or deviation from sentencing principles, always subject to appellate review. They might be guided by a computer database of information about previous criminal cases.

These and other techniques would help prevent unwarranted disparities while still reserving discretion to tailor the punishment to the facts and factors unique to each case. Admittedly, this would be the end of federal sentencing as we know it. But if Congress finally allows judges to judge, we'll all be fine.

Erik Luna is author of the Cato Institute report "Misguided Guidelines: A Critique of Federal Sentencing."

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