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September 30, 2004 - The Wall Street Journal (US)

Mandatory Sentences Loom as Issue

Ahead of Supreme Court Session, All 3 Branches of Government Jockey Over Control of System

By Gary Fields And Laurie P. Cohen, Staff Reporters

The three branches of government are jockeying to gain control over criminal sentencing should the Supreme Court change or even strike down the current system of federal guidelines.

The Supreme Court is set to hear arguments Monday in two cases that the Justice Department maintains show that federal sentencing guidelines are constitutional. Enacted in 1987, the guidelines designate factors judges must consider in sentencing defendants. They have served as a model for criminal sentences ever since.

The high court threw the sentencing system into turmoil in June. In a case from Washington state, it ruled that any factor that increases a criminal sentence under the guidelines -- other than a prior conviction -- must be admitted by a defendant in a plea bargain or proved to a jury beyond a reasonable doubt.

That ruling has left lawyers, judges and legislators uncertain about the validity of federal sentencing guidelines. It also has prompted speculation that Congress will impose mandatory sentences for a raft of crimes, from minor offenses to major felonies, leaving judges no latitude to allow for individual circumstances. The Supreme Court in 2002 affirmed the legality of mandatory minimum laws enacted by Congress.

The emerging battle lines address a central question over the assumed separation of powers between the legislative and judicial branches: Who has control over sentencing? Judges long have held undisputed authority, but tough-on-crime politicians during the past 20 years have steadily eroded the discretion of judges through sentencing guidelines and a steady increase in mandatory minimum sentences. More than half of those sentenced annually for drug offenses receive mandatory minimums. Of the 49,965 defendants sentenced for drug charges in 2001 and 2002, 56.9% received five- or 10-year mandatory minimums.

If the federal sentencing guidelines are struck down, "the last word will come from Capitol Hill, which is champing at the bit" to enact legislation, says U.S. District Judge Ruben Castillo, one of three judges on the U.S. Sentencing Commission, which promulgates the federal guidelines.

The House Judiciary Committee could as early as today approve a bill to raise mandatory minimum sentences for some crimes, such as drug trafficking near video arcades, and to create new mandatory minimums for offenses including drug trafficking near drug-treatment facilities and day-care facilities. It also curbs some protections that low-level, nonviolent offenders can receive against longer sentences.

(Remainder snipped at the request of The Wall Street Journal)

Write to Gary Fields at and Laurie P. Cohen at

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