One burglar comes before Judge A, who doesn't think crimes against property are serious and who believes that rehabilitation is the goal of sentencing. He puts the offender on probation and orders psychiatric treatment and job training. A second burglar of similar background comes before Judge B, who takes the crime very seriously and believes that judges must penalize wrongdoing, protect the community by incapacitating the miscreant, and set an example for other would-be burglars. Sentence: eight to 12 years.
Rightly dismayed by such results, certain states, Maryland among them, have begun to adjust criminal sentencing procedures to reduce sentence disparity while leaving judges some discretion. Congress has wrestled with this question as part of an effort to revise the entire federal criminal code. But the revision has been stalled for so long that legislators have begun to think of salvaging some sections by considering them separately. Members of the House and Senate Judiciary committees tried to fashion a separate bill on sentencing guidelines in the lame-duck session. Time ran out, but the bipartisan leadership of both committees agreed to consider a bill early in this session.
The purpose is to provide objective guidelines to assist judges in sentencing. In the Maryland experiment, for example, a manual has been prepared that assigns points to offenses based on the seriousness of the crime and gives points to offenders based on such things as prior record and bail or parole status. The judge then cross-indexes these points to find the range of sentences best suited to that offender for that crime.
The bill before Congress would simply authorize a commission to establish guidelines. But many questions remain to be settled: should the commission consist of judges or a varied group chosen by the president? Should judges be required, or just urged, to follow the guidelines? If discretion is allowed, should a defendant be able to appeal a sentence greater than the maximum in the guidelines? Should prosecutors be able to appeal sentences below the minimum? Should parole be abolished, and if so, should mandatory minimums be low? What should be done if the increased imposition of mandatory minimum sentences overcrowds prisons? Should corrections officials then be authorized to release nonviolent offenders early?
These are hard questions, but compromises on each were considered by federal legislators last December. The Judiciary committees have a full plate this session: bankruptcy courts, immigration reform, and help for the Supreme Court are priority items. Sentencing legislation belongs on that list. If the progress made during the last hours of the 97th Congress is any indication, the job can be done.