- The Washington Times - Sunday, November 19, 2000

The attorney general, as the chief law enforcement officer in the United States, has a duty to enforce the laws. Under this administration, this duty has not always been met; the failure to fully enforce our gun laws is just one well-known example. Now, it is becoming clear that this Justice Department is failing to uphold our sentencing laws. As a result, more and more criminals are serving less time than they should under the law. In the 1980s, Congress created sentencing guidelines to bring some fairness and predictability to how criminals were sentenced in federal courts.

At the time, it was anyone's guess how much jail time federal criminals would receive or how long they would actually serve. The guidelines established a limited range within which the judge may sentence an offender after taking into account all the details about his case, such as his conduct and prior criminal record. Any legitimate need to sentence outside of these comprehensive rules should be rare. Treating similarly situated offenders in similar ways benefits victims and criminals alike, and it promotes public confidence in our criminal justice system. Punishment that is tough, swift and consistent is essential to controlling crime.

Today, the system we worked so hard to create is being threatened by the increasing trend of sentencing criminals below the range established in the guidelines. The year before President Clinton took office, 80 percent of criminals received sentences within the guidelines; last year, only about 65 percent were sentenced within the guidelines.

This disturbing trend is rising steadily each year with no end in sight. Although judges can sentence above the guidelines, they almost never do. More than one-third of offenders are getting a break from the guidelines. We are slowly returning to the uncertain system we thought we had replaced.

The problem is most acute on the Southwest border where judges and federal prosecutors are agreeing to sentences below the guidelines as a way to handle the increasing number of aliens who are being caught crossing the border illegally. Some accommodations at the border may be warranted. However, each U.S. attorney has his own way of responding to the problem without any firm policies from the Justice Department. In many cases, aliens who commit serious violent felonies in the United States, or who smuggle other aliens into our country, are getting the benefit of generously reduced sentences.

Moreover, the problem is much broader than immigration. The trend is evident for almost all federal crimes, including drug trafficking and fraud. Even those convicted of federal firearms offenses are increasingly receiving sentences lower than what the guidelines provide.

It was clear from a hearing I recently chaired on this matter before the Judiciary subcommittee on Criminal Justice Oversight that the Justice Department has done nothing to stop this trend toward more lenient sentences. In fact, the department is a large part of the problem.

As judges impose sentences below the guidelines for more creative reasons, it would seem that prosecutors would appeal more cases. But just the opposite is occurring; the department is appealing less. Of the more than 8,300 downward departure cases last year, the government appealed only 19.

The Justice Department also contributes to the problem in the way it handles the most frequent type of downward departure, called substantial assistance, which is given to defendants who cooperate with the government. Without any control from the Justice Department, U.S. attorneys vary drastically in how often they give this departure or even how they define what it means, thereby further contributing to disparity in the guidelines.

There are federal districts, such as the nearby Eastern District of Virginia, that are committed to the guidelines and have high compliance rates with them. However, they are the exception rather than the rule. After years of neglect, it is time for the attorney general to place a renewed focus on upholding the integrity of the guidelines.

Strom Thurmond, a Republican. is the senior senator from South Carolina.

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