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January 16, 2005 - The San Francisco Chronicle (CA)

Column: When Congress Plays Judge

By Debra J. Saunders

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THE DEPARTMENT of Justice reacted as expected to last week's U.S. Supreme Court decision that allowed federal judges to set sentences outside federal guidelines. A spokesman said the feds are "disappointed" because this ruling will lead to more disparity in sentencing.

Bunk. For one thing, that statement suggests that there is less disparity with mandatory guidelines. That's simply not true. There are huge disparities under the present system. Career drug dealers can see their sentences shaved substantially if they testify against other players in their drug ring -- even people below them -- while those new to the trade don't have the knowledge to follow suit.

There also is disparity between venues. Supporters of the system argue that uniform guidelines mean that offenders serve the same time for the same crime, no matter who or where the judge is. But the present system transfers discretion from judges to prosecutors. Some U.S. attorneys go for the absolute maximum -- decades or more -- for first-time nonviolent drug offenders, while others show more restraint.

There is the disparity between local and federal prosecutions. As Justice Anthony Kennedy noted in a speech to the American Bar Association in San Francisco two years ago, a young man prosecuted for possession of five grams of crack would serve months if caught by local police, but a minimum of five years if caught on federal property and prosecuted by federal officials.

And I hate to tell you this, because it makes the issue all that much more confusing, but the Big Bench only ruled that the federal sentencing guidelines aren't mandatory. Mandatory minimums -- a separate set of federal standards for politically incorrect crime -- remain mandatory.

If the Department of Justice wants less disparity, I have a great suggestion: How about a ceiling for first-time nonviolent offenders, so that they don't serve more than 10 years?

That would prevent overzealous prosecutors who heap charges on defendants - -- hitting them for drug deals conducted by others, charging them for crack (which brings a much stronger sentence) when cocaine traded hands -- so that a first-time nonviolent offender, who is not a kingpin, ends up behind bars for a decade or more, life even, as the career dealers roam free.

Last June, the Supreme Court issued a ruling that threatened to upend the federal sentencing system. The court found that judges could not lengthen a sentence based on the guidelines unless jurors ruled on the facts leading up to the enhancement. It was a Sixth Amendment issue.

Would the new ruling apply retroactively? Would the guidelines be toast?

The legal community waited for later rulings to clarify this. Last week's Booker and Fanfan decision showed a court making a results-oriented decision. Rather than throw the guidelines out or saddle them with onerous requirements, a thin majority of the court instead decided, , as Justice Steve Breyer wrote, to determine "what Congress would have intended" -- and they believed that Congress would have preferred that the court, given its recent rulings, make the guidelines advisory, not mandatory.

Big problem: Even if the court was right about the intent of those who passed 1984 law, this Congress can pass a law that says it wants the guidelines to be mandatory. Then Booker won't mean anything. Further prosecutions simply will require that juries rule on all factors leading to a sentence.

In civics class, your teacher told you about the balance of power. The executive, legislative and judicial branches compete, and no one branch has the power to weaken the others. Your teacher never told you about the victims. Or the mess that can ensue.

Decaces ago, judges chose to get around laws they didn't like -- they were acting like lawmakers. Then lawmakers passed laws that set sentences for trials they'll never see. Judges acted like lawmakers, then lawmakers acted like judges. Hanging judges.

Eric Sterling doesn't get the hostility that congressional Republicans feel toward federal judges. Since 1980, he notes, there have only been two years when a Democratic president could name judges, and Democrats ruled the confirmation process. As a result, the overwhelming majority of federal judges are "Republican-vetted," Sterling noted.

Congressional activism is not an improvement over judicial activism. It is a marriage of bad government with big government -- resulting in big, bad government. It replaces judges choosing which laws they want to enforce with lawmakers sentencing people they will never see.

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