- The Washington Times - Monday, January 17, 2005

Mandatory sentencing slashes crime. The multiple decisions of the U.S. Supreme Court in United States vs. Booker (Jan. 12, 2005) obtusely upended mandatory Federal Sentencing Guidelines in the name of honoring both the Sixth Amendment right to jury trial and congressional intent in enacting the Sentencing Reform Act of 1984 (SRA).

Congress should race to restore federal mandatory sentences, but with juries finding facts that would determine the severity of punishment.

Career criminals commit the bulk of offenses. Their incarceration forecloses new crimes. Mandatory sentencing also captures noncareer criminals. That misfortune is inescapable because criminology is an infant science. Too little is known of the personalities or circumstances that earmark recidivists to risk mandatory sentencing exceptions. But the overbreadth is worth the price of protecting the innocent.

Since the displacement of Great Society sentencing indulgence with mandatory schemes in the 1980s, the incidence of crime has plunged dramatically. Countless murders have been avoided, endless rapes prevented, innumerable robberies thwarted, and hundreds of thousands of other crimes foiled because of mandatory sentencing.

Congress followed the post-Great Society tide in 1984 with the SRA to stiffen sentences and to make them more uniform. A Federal Sentencing Commission was created to promulgate mandatory Federal Sentencing Guidelines (FSG). They identified characteristics of the offender and the offense found by a jury in the trial phase that translated into a base sentence.

In post-trial proceedings, the presiding judge could depart upward (or downward) by making additional findings that aggravated or mitigated the crime by a preponderance of the evidence. For example, an upward departure would be justified if the judge found the defendant committed perjury in testifying in his own defense.

Detractors of the FSG complained federal judges were handcuffed in making sentences correspond to their morally superior yardsticks for measuring depravity. But members of Congress, echoing public sentiments, adamantly disagreed.

The correlation between mandatory sentences and tumbling crime rates was too pronounced to ignore. Every effort to weaken the FSG or to endow judges with more sentencing options was smartly defeated. The PROTECT Act of 2003 fortified its mandatory features by directing the Sentencing Commission to further confine judicial opportunities for departing from base sentences.

In unmistakable language, Congress lashed at indulgent or starry-eyed judges. The tart remarks of Sen. Orrin Hatch, Utah Republican, were emblematic: “[The Act] says the game is over for judges. You will have some departure guidelines from the Sentencing Commission, but you are not going beyond those, and you are not going to go on doing what is happening in our society today on children’s crimes, no matter how softhearted you are. … We say in this bill: We are sick of this, judges.”

The FSG, nevertheless, had vastly magnified the role of the judge at the expense of the jury. After a criminal conviction, judges found facts without the cherished procedural safeguards that protected a defendant from unreliable verdicts, for instance, proof of guilt beyond a reasonable doubt and a right to confront accusers. Under the FSG, the dubious findings of judges substantially hiked sentencing ranges, for example, in Booker, from 262 months to life imprisonment. The Sixth Amendment right to a jury trial withered. Arbitrary or oppressive judges regularly circumvent the jury buffer by finding aggravating facts based on hearsay or whimsy.

Accordingly, a 5-4 majority held the FSG unconstitutional in Booker insofar as judges usurped the traditional jury role in decisively determining the range of permissible punishments. Writing for the Court, Justice John Paul Stevens declared: “Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximums authorized by the facts established by a guilty plea or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”

The self-evident remedy to cure the constitutional FSG defect consistent with congressional intent was to retain mandatory sentencing, but to require the prosecutor to prove all sentence-enhancing facts during the trial phase. Congress had made the SRA progressively tougher on criminals, and had voiced outrage with “softhearted” judges.

Given a choice between mandatory sentences determined by juries or indeterminate sentences set by judges, Congress would have overwhelming preferred the former. Yet a different 5-4 Supreme Court majority in Booker, speaking through Justice Stephen Breyer, ridiculously insisted on the opposite.

Before his elevation to the Supreme Court, Justice Breyer had fathered the FSG. In his Booker opinion, he doted on his offspring. He presumed the infallibility of federal judges and their unexcelled moral insights about criminals. He contrived a congressional love affair with judicial sentencing discretion.

Accordingly, Justice Breyer rejected mandatory sentences under the FSG with aggravating circumstances found by a jury in favor of a scheme that Congress and the public have unequivocally disparaged as too lenient: namely, indeterminate sentencing by irresolute judges that chronically shortchange crime victims.

The 109th Congress should sprint to override Justice Breyer by reinstating mandatory sentencing consistent with the constitutional right to jury trial. No better crime fighting tool is available.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein and Associates and the Lichfield Group.

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