Soft Numbers

A front-page story in today's New York Times suggests that, judging from the experience in states such as Virginia, making federal sentencing guidelines advisory rather than mandatory may not make much difference in the penalties imposed by judges. Then again, given the differences between state and federal systems, including the way judges are selected, it might.

The Times notes that 65 percent of federal sentences in 2002 fell within guideline ranges, which sounds surprisingly low. But as the accompanying graph shows, an additional 17 percent of sentences were reduced below the guideline range based on cooperation with prosecutors, while another 5 percent or so were reduced because of plea agreements or "expedited immigration cases," two other categories approved by prosecutors. In 1 percent of cases sentences were higher than the guideline range. That leaves only about 12 percent of sentences that were reduced in a way that might have aroused objections from prosecutors--not very strong evidence that judges were abusing their discretion, as congressional critics charged.

Of course, that percentage could rise substantially now that the guidelines are no longer mandatory. But given the track record of legislators who condemn federal judges for being too soft, their complaints about the new system should be taken with a grain of salt.

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    The constitutional problem with the guildines is not that it removes descretion from the judge or even that it slams people automatically for committing crimes. The problem is that the system allowed a judge to increase a sentence, dramatically in some cases, based on facts that were never proven beyond a reasonable doubt before a jury. A person could be found guilty beyond a reasonable doubt for drug smuggling and then have a judge find by a "preponderance of the evidence" that that person was also a "key leader" or some other aggrivating factor and take a two year minimum and make it a ten year minimum. If Congress wants "drug kingpins" to do a minimum of life, fine, but define what that means and make it an element of the offense. Make the judge or jury find beyond a reasonable doubt that not only was the person smuggling drugs but that that person was the leader of the ring. All the Supreme Court was saying is that a right to a jury trial means just that, a right to a trial and proof beyond reasonable doubt for every element of the offense that gets you sentenced. The guidlines as they were were just a free ticket for lazy and often incompetent U.S. attorneys to get big sentences without actually proving the entire case.

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