EVER SINCE THE Supreme Court threw the world of federal criminal sentencing into turmoil over the past year, there has been a real risk of a dangerous legislative response. The court declared unconstitutional the mandatory imposition of the federal sentencing guidelines, effectively freeing district judges around the country to use their discretion in imposing prison terms. The decision, the culmination of a line of cases in which an ideologically diverse group of justices has largely rewritten the rules of criminal sentencing, is not a model of intellectual coherence. And frustration with its ruling, both on the part of members of Congress and on the part of the Bush administration, is perfectly understandable. That said, Attorney General Alberto R. Gonzales was overly hasty in a speech earlier this summer in seeking a legislative fix that would do far more harm than good.
Mr. Gonzales cited data from the U.S. Sentencing Commission that suggest that "sentencing within the guidelines by federal judges has fallen from almost 70 percent in 2003 to under 63 percent today." He cited some individual cases in which he found specific departures from the guidelines disturbing. And he suggested, as a remedy, "the construction of a minimum guideline system" under which "the sentencing court would be bound by the guidelines minimum [sentence]" but not its maximum.
The system he describes would restore the mandatory quality of the old guidelines by exploiting a kind of loophole in the court's decision. The court insisted that the guidelines could not force a judge to increase someone's sentence beyond the presumptive sentencing range. But it did not prohibit mandatory minimum sentencing. So by simply widening the presumptive sentencing range for a crime, Congress could once again make sentencing within that range mandatory.
This would be a deeply unfortunate response. If Mr. Gonzales is concerned about disparate sentencing, letting some people be sentenced harshly and arbitrarily -- which could happen under the system he proposes -- is as bad as allowing excessive leniency. Allowing judges to be harsher, but not more lenient, than the guidelines suggest is a bad answer.
More fundamentally, while we disagreed with the court that the mandatory guidelines ought to be struck down, they were not without problems. The guidelines tended to be rigid, inflexible and insensitive to the individual circumstances of those sentenced under them -- particularly in drug cases. In principle, giving judges more discretion is desirable. And the fact that some may be using the discretion the court has given them isn't necessarily a bad thing. Nor is the evidence Mr. Gonzales cites of judges increasingly departing from the guidelines especially impressive. The decline is modest, and it has been only a few months since the court ruled. It will take a lot longer than that to discern whether in practice the ruling is injecting objectionable disparities or a measure of common sense into criminal sentencing. Congress and the attorney general ought to withhold judgment until a clearer picture emerges.