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Handcuffing Judges

February 12, 1989

For nearly a century Congress let federal trial judges make the sentence fit the crime. Statutes prescribed general penalties but usually gave the sentencing judge wide discretion in fashioning a suitable punishment. A judge who doubted, for example, that a long stint in prison would rehabilitate a young convict was free to impose a light sentence. A lengthy sentence could also be reduced by the U.S. Parole Board.

But in 1984 a law-and-order-minded Congress did an about-face. In the Sentencing Reform Act the lawmakers abandoned the notion that a prison term might rehabilitate anyone, declared that the prisons were designed only to punish, stripped judges of their sentencing discretion and abolished parole. The U.S. Sentencing Commission, made up of professors and federal judges, was established to develop fixed prison sentences, without the possibility of parole, for every federal crime.

Immediately and immensely unpopular with judges, the commission's strict sentencing guidelines also were challenged by federal defendants. More than 150 federal judges, including the U.S. 9th Circuit Court of Appeals and the members of the U.S. District Court in Los Angeles, sitting en banc , ruled that the guidelines were unconstitutional. But now those rulings have been overturned by the U.S. Supreme Court.

In upholding the guidelines, the justices dealt only with the constitutional challenges to the powers of the Sentencing Commission, not with the wisdom of fixed prison sentences. With relative ease the justices dismissed the argument that Congress could not constitutionally delegate its lawmaking authority to such a commission; Congress has been doing just that for decades. The justices also gave short shrift to the contention that the presence of three judges on the commission unconstitutionally expanded the authority of the judicial branch in violation of the separation-of-powers principle; as the majority observed, what really bothers trial judges is that the guidelines diminish their power.

Although the guidelines have been pronounced constitutional, they remain, in our view, deeply flawed. No mechanical sentencing system, no matter how closely it calculates mitigating and aggravating circumstances, can ever be a satisfactory substitute for an experienced trial judge who can bring both compassion and skepticism to bear in passing sentence. The disparities inevitable in such a system are more acceptable than the costly, overflowing prisons that stem from mandatory sentences. Putting all white-collar and other nonviolent criminals behind bars for years, as the federal guidelines command, accomplishes nothing. Largely because of legislators' penchant for fixed sentences, the United States has 600,000 people incarcerated in state and federal penitentiaries. Some correction groups say that only South Africa has a higher percentage of its population behind bars, and yet, despite the record number of Americans in prison, do most citizens feel any safer on the streets? We think not. Fixed sentences were never the answer to the crime problem; even with Supreme Court sanction they still are not.

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