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March 27, 2006 - Milwaukee Journal Sentinel (WI)

Editorial: Discretion Where It Belongs

Return to Drug War News: Don't Miss Archive

Early last year, the nation's top court changed how federal judges set the sentences they issued. Before the Supreme Court decided United States vs. Booker, judges had to fit sentences within specific limits. Afterward, they could treat those limits as suggestions, not mandates.

The switch served the cause of justice. The federal mandatory minimums led to too many unfair sentences, far out of proportion to the crime. But that imbalance didn't happen to be the reason the Supreme Court struck down the mandatory nature of the sentencing guidelines.

Rather, the court faulted the sentencing scheme because it had a judge doing what is rightly a jury's work - that is, finding whether elements of the crime were present that could lengthen sentences. So it's possible to restore the mandates in such a way as not to upset the high court.

In fact, Rep. Jim Sensenbrenner, the Menomonee Falls Republican who chairs the House Judiciary Committee, is hinting he will seek to do just that.

He mustn't. The old system straitjacketed judges too much, such as Utah's U.S. District Judge Paul Cassell, known as a hard-line conservative.

He lamented from the bench that he had no choice but to put a first-time offender in prison for 55 years for dealing marijuana.

Justice demands that judges be allowed to exercise discretion. Otherwise, you may as well replace him or her with a computer program.

The rationale behind mandatory sentencing is that it keeps punishment uniform. But it only seems to do so.

It simply transfers discretion from the judge to the prosecutor, who exercises it by choosing which charges to bring or whether to bring any at all. Prosecutors use the draconian sentences as a club to extract plea bargains.

The system allows U.S. attorneys to dish out leniency in exchange for cooperation. Thus, suspects with much information to trade can get light sentences.

One consequence is that drug ringleaders have gotten much shorter sentences than defendants only tangentially connected to the ring, such as a leader's girlfriend, since the latter has little information to swap. Giving the judge discretion can prevent such injustices.

In a report delivered to the Judiciary Committee last week, the U.S. Sentencing Commission found that judges have conformed with sentencing guidelines 86% of the time -- compared with 91% during one period before Booker and 94% during another period. (Judges could deviate from the guidelines under special circumstances.)

In other words, the difference pre- and post-Booker isn't stark. Also, on average, the sentences have been slightly longer since the ruling.

Judges are by and large heeding the guidelines. Yet they retain the ability to depart from them in the interest of justice. Congress mustn't take that flexibility away again.

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