Posted on: Monday, January 17, 2005

EDITORIAL
Ruling renews fight over court discretion

It started with a pair of drug pushers, Freddie Booker in Wisconsin and Duncan Fanfan in Maine. Both were convicted of possessing substantial amounts of cocaine with intent to sell.

Stiff sentences were obviously in order. But according to the sentencing guidelines passed by Congress 21 years ago, those sentences had to be enhanced because, according to prosecutors, the two men had even more cocaine than they were convicted of possessing.

Those sentencing guidelines resulted from an epochal struggle between the federal courts and Congress over judicial discretion. Politicians were upset that defendants convicted of similar offenses were getting different sentences from one judge to the next. But what primarily annoyed them was the occasional light sentence.

The sentencing guidelines thus limited the power of judges to exercise mercy based on unique circumstances.

That was a sad day for American justice. Rehabilitation often begins in the courtroom when judges give repentant defendants a break.

Worse, cookie-cutter sentencing guidelines have sometimes forced judges to impose sentences that defy common sense.

Last year, the U.S. Supreme Court ruled that the Sixth Amendment requires juries, not judges, to determine facts that can lengthen sentences, and last week the court found that principle applies Booker and Fanfan.

The remedy, according to Justice Stephen Breyer, was not to send the cases back to their respective juries, but rather to make the guidelines "advisory" aids to judges in coming up with "reasonable" sentences.

We think that's a satisfactory place to leave the matter, but it's clear that Republicans in Congress do not.

"The Supreme Court's decision to place this extraordinary power to sentence a person solely in the hands of a single federal judge — who is accountable to no one — flies in the face of the clear will of Congress," said Rep. Tom Feeney, R-Fla.

Feeney last year led a successful (and ominous) effort to require the United States Sentencing Commission to provide Congress with the names of federal judges who departed from the guidelines.

The Justice Department was also disappointed. "To the extent that the guidelines are now advisory," it said, "the risk increases that sentences across the country will become wildly inconsistent."

We'd argue that by "consistent," critics mean "uniformly harsh." It was that sort of "foolish consistency" that Ralph Waldo Emerson recognized as "the hobgoblin of little minds, adored by little statesmen."

The decision will have enormous consequences. Some 60,000 defendants a year are sentenced in federal courts. For prisoners who have not exhausted appeals, prosecutors and defense lawyers can seek new sentencings.

"There will be a flood of litigation," Nancy J. King, a law professor at Vanderbilt University, said. "It opens up a new can of worms."