It is not difficult to criticize the circuitous way the U.S. Supreme Court — acting Wednesday more like a quasi-legislative body than a court — went about downgrading but not quite eliminating the controversial sentencing “guidelines” system Congress set up in 1984. The high court might have created less confusion if it had simply declared the entire system unconstitutional and told Congress to try again.
On balance, however, the court got to a constructive result. The federal sentencing guidelines had created intolerable confusion and injustice and had to go. The court didn’t fix the entire problem, but it made a respectable start.
Briefly, here’s the background: In the 1980s, federal judges were being criticized both by “tough-on-crime” advocates who condemned “bleeding heart” judges who handed out lenient sentences and by civil-rights advocates who claimed African-Americans tended to get disproportionately long sentences. Some scholars dispute the scope of the disparities, but the perception was that sentencing for the same or similar crimes was wildly inconsistent from one part of the country to another.
So Congress created the U.S. Sentencing Commission, empowered to set up sentencing guidelines for various crimes. The guidelines turned out to be more rigid than most judges preferred, setting up a mandatory floor for sentencing and making it difficult to revise a sentence downward based on mitigating circumstances. By 1997, a survey of federal judges found that two-thirds of them found the guidelines unnecessary and many believed they were downright harmful to the administration of justice.
The sentencing commission was challenged as unconstitutional, since in effect it performed legislative functions with no accountability to the people or to any of the three branches of government. But the high court upheld its constitutionality in 1989.
Appellate lawyers tried a different path, and last year in Blakely v. Washington, the court found unconstitutional a state system based on the federal guidelines. The reason? Sentences could be enhanced — increased — by a judge based on factors the jury hadn’t considered or ruled upon. That violated the guarantee of trial by jury.
Would the same criticism apply to the federal sentencing system? Understanding the confusion the Blakely decision would create, the court took up two drug cases — U.S. v. Booker and U.S. v. Fanfan — that raised similar issues. It ruled 5-4 that federal judges are no longer bound by the misnamed “guidelines.” Instead of eliminating the guideline system, however, a separate 5-4 majority ruled that the guidelines would henceforth be “effectively advisory,” giving judges more discretion to depart from them based on individual circumstances.
The major effect will be on white-collar crimes and drug cases, which according to the Sentencing Project account for 55 percent of federal prisoners. In the future, drug offenders are likely to get less severe sentences, and an unpredictable number of prisoners currently serving time could have their sentences reviewed.
The effect on major crimes like murder, assault, robbery and the like will be minimal since most of these crimes are handled at the state level. In cases where what was proven to the jury supported a lower sentence but facts known later to the judge supported a more severe sentence, the defendant could request resentencing, but the government could request a resentencing in which a jury decided on the sentence-enhancing facts later learned by the judge.
The decision does not touch certain “mandatory minimum” sentences Congress enacted during a flurry of get-tough-on-drugs legislation in the late 1980s. Those laws have cost taxpayers while doing little or nothing to reduce illicit drug use, but it will be up to Congress to change them.
A logical step would be for Congress to enact new laws calling for treatment instead of prison in certain drug cases, along the lines of the voter-enacted Proposition 36 in California. Whether Congress is in the mood for such rationality is another question.
Congress should probably wait a while, to see how the new system mandated by the high court (many details of which are still fuzzy) works in practice. If obvious injustices emerge, it can act then — and probably create new problems in the process.