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Will the Real Janet Reno Please Stand Up? : Let's straighten out federal sentencing laws

March 21, 1994

The oddities and growing inequities embodied in federal criminal sentencing laws long have troubled civil libertarians and, more recently, a handful of outspoken federal judges. However, their opinions have counted for little when stacked against congressional majorities bent on federalizing yet more crimes, and against an electorate hopping mad over street crime.

ABSURD ANOMALIES: Determined to fight drug trafficking and violent crime, Congress, beginning in 1984, progressively has stripped from federal trial judges their traditional discretion in sentencing criminal offenders. The so-called mandatory minimum prison sentences that now attach to specific criminal offenses do not easily square with our notions of rational punishment. Sentences like five years without parole for possession (including possession for personal use only) of more than five grams--or one-fifth of an ounce--of crack cocaine. Or 10 years without parole for having any role in the distribution of more than 50 grams of crack--a sentence well above the range specified in the guidelines for solicitation of murder. These sentences must be doubled, to 10 and 20 years respectively, for any defendant with a previous drug felony conviction, no matter how long ago or how minor.

Conviction for trafficking in LSD that is on blotter paper carries a lighter sentence than does conviction for selling the same amount of LSD dissolved in a sugar cube. Why? Because the cube weighs more and the total weight figures into the computation of the prison sentence. And it goes on.

Not surprisingly, these weird and rigid guidelines have now filled federal prisons with nonviolent offenders. A recent Justice Department study found that one-fifth of federal inmates committed mostly nonviolent, first-time drug offenses. In some cases, violent offenders have been released to make room for petty drug dealers or teen-agers who made one bad mistake.

TURNED-OFF JUDGES: A critical mass of federal judges of all ideological stripes is voicing alarm at these consequences. In recent years, several prominent district court judges, including Terry J. Hatter Jr. of Los Angeles and Jack B. Weinstein of Brooklyn, have announced they will no longer hear drug cases when they take senior status, leaving these cases to younger colleagues. Their isolated voices were amplified earlier this month by U.S. Supreme Court Justice Anthony M. Kennedy--not exactly a liberal. In congressional hearings, Kennedy said, " . . . I am in agreement with most judges in the federal system that mandatory minimums are an imprudent, unwise and often unjust mechanism for sentencing."

As Congress debates the crime bills now before it, some of which define new federal crimes and call for tougher punishments, conspicuous by her silence is U.S. Atty. Gen. Janet Reno, whose Justice Department is still reeling from the resignations of its No. 2 and No. 3 officials. Reno long has been critical--courageously so--of the rigid sentencing laws, but she has kept too quiet since joining the Clinton Administration, which is taking a hard line on crime. Her moment is now, if she can put aside her personnel crisis. Justice Kennedy's comments put her squarely in the spotlight.

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