Guidelines, plus a judge's discretion

Federal judges were emancipated last week when the Supreme Court ruled that the sentencing guidelines passed by Congress in the mid-1980s are unconstitutional.

"Guidelines" was a misnomer to begin with. The rules set a mandatory range for sentences, intended to build some uniformity into sentences in federal courts across the nation.

But the high court said they were inappropriate because sentencing judges could consider evidence on their own that would lengthen a prison term, thus skirting the Sixth Amendment right to a jury trial.

The guidelines might call for a certain penalty, say 27 to 33 months for a particular offense, but judges could deviate from the guidelines if prosecutors or defense attorneys successfully argued for "upward departures" or "downward departures," depending on details of the crime. For example, there could be a two-point enhancement for possession of two or three weapons during certain crimes or the amount of drugs sold by a defendant.

But now, the guidelines are to be considered advisory, rather than mandatory. Judges won't be bound by formulaic sentences, but will have their own discretion to make the punishment fit the crime.

If it still seems to you that judges are making the decisions, not juries, you are right, but Justice Ginsburg voted with the majority on ending mandatory guidelines, and then turned around and voted with the other justices to support the advisory guidelines. It makes the logic of the ruling somewhat confusing, but ultimately it could result in a better judicial system.

Most judges, after all, already have a good deal of discretion. Consider, for example, the Montana statute on sexual intercourse without consent. The penalty is not less than two years and up to 100 years or life in prison. That broad range allows judges to consider the circumstances of each case.

If each rapist committed his crime in exactly the same fashion as every other rapist, a standard penalty would be fair, but nothing is that simple. One may have an extensive criminal record; another may not. One may cause greater physical harm than another. One may turn himself in and plead guilty to his crime, while another may refuse to take responsibility.

Federal law already assigned values to some of those factors so that judges could fashion sentences with some acknowledgement of individuality in the courtroom.

But not enough to satisfy Donald Molloy, the Chief U.S. District Judge for Montana. Just last summer, he sentenced a man to 21 months in prison, even though the judge said he disagreed with his own penalty.

"I think he's about 21 months higher than he ought to be," Molloy said at the time. "I don't have the discretion to do what's right; I have to do what's legal."

Now, it will be legal for Molloy and other judges to levy sentences they believe in. If they're wrong, or unfair, defendants and prosecutors still have the right to appeal their sentences.

That's not a bad way to run a judicial system.