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The Court on Sentencing

Friday, January 14, 2005; Page A18

TWO 5 TO 4 SUPREME Court decisions Wednesday on federal sentencing guidelines did not produce an entirely coherent result from a legal scholar's point of view, but as a policy matter the outcome was the best that could have been expected, given earlier court decisions. The court ruled that the mandatory guidelines that have governed federal judges' sentencing decisions since 1987 are unconstitutional, but in a second case -- and with a different five-member majority -- it then instructed judges to be strongly influenced by the guidelines in their sentencing decisions. At best, this may mean that judicial discretion has been restored, but with now-voluntary guidelines deterring a return to the sentencing disparities that prompted Congress to enact the guidelines more than two decades ago.

The logic that led five justices to strike down the mandatory guidelines emerged first in a 2000 case, Apprendi v. New Jersey, and was extended in last year's Blakely v. Washington. Both were the rulings of an eclectic, liberal-and-conservative five-justice majority that held that state laws instructing judges to increase sentences based on certain factors violated the constitutional right to trial by jury. The laws told judges to increase sentences based on their own finding of facts -- findings that a criminal had been motivated by racial hatred, say, or had possessed more illegal drugs than had been proven to the jury. The court said such elements essentially changed the nature of the crime, and should be weighed by a jury. The logic of those cases seemed applicable to federal sentencing guidelines, too.

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This week the same five justices confirmed that mandatory judicial fact-finding under the federal guidelines is unconstitutional. But a different configuration -- with Justice Ruth Bader Ginsburg jumping from one majority to the other -- held that federal trial judges may and should still use the guidelines as advisory. It's not clear to us why it is constitutional to allow a judge to increase a sentence based on facts not proven to a jury but unconstitutional to require a judge to do so. But that is where the court's jockeying and compromising have ended.

Some senators and representatives, particularly conservatives worried that unshackled judges will now be too lenient, said they hope to quickly enact a new sentencing scheme. But likely legislative responses could make matters worse. The court did not strike down mandatory minimum sentences, which remain a source of irrationally harsh sentences; Congress might enact more of those. Or legislators might insist on two-stage trials, in which prosecutors would -- as they now do in capital cases -- first prove guilt, and then prove various elements justifying a harsh sentence, with a jury involved in both phases. But such a system could prove extremely inefficient.

Any sentencing system must balance legitimate competing values: between a desire for consistency across courtrooms and a respect for judicial discretion; between a need for rigorous punishment and an escape hatch for mercy in special circumstances. No system will find the right balance in every case, but the court may have stumbled into a reasonable compromise. Congress at least should watch and see before rushing in with a radical new approach.

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