The case of United States vs. Booker has been in the news lately, and it's definitely controversial.
It started when...
Under the Federal Sentencing Guidelines, the sentence authorized by the jury verdict in respondent Booker’s drug case was 210-to-262 months in prison. At the sentencing hearing, the judge found additional facts by a preponderance of the evidence. Because these findings mandated a sentence between 360 months and life, the judge gave Booker a 30-year sentence instead of the 21-year, 10-month, sentence he could have imposed based on the facts proved to the jury beyond a reasonable doubt.
In response, the majority decided, in effect:
...18 U. S. C. A. §3553(b)(1), which makes the Federal Sentencing Guidelines mandatory, is incompatible with today’s Sixth Amendment “jury trial” holding and therefore must be severed and excised from the Sentencing Reform Act of 1984 (Act). Section 3742(e), which depends upon the Guidelines’ mandatory nature, also must be severed and excised. So modified, the Act makes the Guidelines effectively advisory, requiring a sentencing court to consider Guidelines ranges, see §3553(a)(4), but permitting it to tailor the sentence in light of other statutory concerns...
And for what it's worth, a look at how the justices lined up on this case:
STEVENS, J., delivered the opinion of the Court in part, in which SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. BREYER, J., delivered the opinion of the Court in part, in which REHNQUIST, C. J., and O’CONNOR, KENNEDY, and GINSBURG, JJ., joined. STEVENS, J., filed an opinion dissenting in part, in which SOUTER, J., joined, and in which SCALIA, J., joined except for Part III and footnote 17. SCALIA, J., and THOMAS, J., filed opinions dissenting in part. BREYER, J., filed an opinion dissenting in part, in which REHNQUIST, C. J., and O’CONNOR and KENNEDY, JJ., joined.
For those who aren't SCOTUS mavens, it should now be obvious that Supreme Court decisions are not a matter of each justice subjecting each case to an up or down vote.
The decision is 124 pages, so I'll let other people do some of the reading for me.
The folks at BreakPoint, a prison ministry, approves of the decision.
The court’s decisions provide a rare opportunity to restore individual justice to what has become a “cookie cutter” system of justice. Watching a federal judge attempt to figure out the arcane charts for sentencing is like watching a game of baccarat. It is purely a mechanical process; turn over the cards and you win or lose – mostly lose. The guidelines are a ratchet that moves most cases in one direction: longer and longer prison terms. When mandatory minimum sentences are combined with the sentencing guidelines, sentences become a rote exercise reflecting neither the individual facts of the case nor the needs of the victims and community.
The Wall Street Journal editorializes against it, believing the guidelines managed to strike "roughly the right balance" between judge, jury, and legislature.
In evaluating the Court's ruling, it helps to remember why Congress passed the 1984 sentencing guidelines in the first place. It was an effort to impose some kind of discipline on a system that was full of disparities and which an ever larger share of the American public saw as too lenient on criminals. It wasn't unusual for a person convicted of a crime in one jurisdiction to receive a sentence years or even decades longer than someone convicted of the same crime in a more liberal one. It all depended on the disposition, not to say whim, of the judges wielding the gavels.
And...
The Federal Sentencing Guidelines weren't perfect, but they struck roughly the right balance among judicial discretion, Congressional oversight and jury responsibility. The guidelines deserve at least part of the credit for the lower crime rate the country is currently enjoying. With more criminals--especially recidivists--behind bars, the rate of violent crime is now at a 30-year low. This is precisely the outcome that Congress intended when it responded to public outrage over crime by passing the guidelines.
OK, that seems to be a representative sample of opinion. Now, a quick comment before I head off to work...
The Journal likes the effect on crime that jailing more criminals has had. Well, I do, too. But even assuming the implied cause-effect relationship is valid (and I think it probably is), criminals have to wind up in prison by means fair and Constitutionally valid. You could drop the crime rate to near zero by jailing everyone who so much as gets a parking ticket, but the courts would properly call that excessive. (I have similar problems with people who advocate prison terms for such things as the possession of small quantities of marijuana on the grounds that it gives prosecutors an easy way to lock up people who are doing something worse for society but harder to prove in court. If that's a valid reason for criminalizing something, or for enhancing penalties, then let's criminalize adultery and fornication and allow for stiff sentences so we don't have to do the hard work of proving some other major crime.)
I have a problem with making sentencing guidelines "mandatory" which is effected by the use of the word "shall" in the guidelines. Part of the reason we have judges hearing legal cases is that they are supposed to – well – judge. If we impose mandatory sentences for crimes, even with a terabyte of conditions, exceptions, and well-in-that-case statements, why have a judge on the case at all? Program a computer with the rules and let it spit out the sentence.
I recognize the frustration with judges who appear to use bad judgment, or no judgment at all. I was around when Rose Bird and two other judges were thrown off the California Supreme Court for repeatedly overturning the death penalty in murder cases. In California and many other jurisdictions, it's possible to vote out of office a judge who manages to outrage the people. At the federal level, I suppose judges can be impeached, but otherwise they serve for life.
In general, judges have a surprisingly good reputation. A judge once pointed out to me, we all know how people feel about lawyers, and we all know how people feel about politicians. Well, a judge is a lawyer who knows a politician.
Okay, maybe judges are the Winston Churchill solution: "The worst possible system – except for all the others that've been tried."
And I agree with the Journal that Congress may need to re-evaluate sentencing guidelines – or maybe look at the possibility of removing or overruling judges. The network of concurring and dissenting opinions in this case is a signal that a fix will be far from easy.
On the whole, and from what I've managed to read, I don't have much of a problem with this decision.
It retains the guidelines, but gives them a force in law more suited to something that is, after all,
a guideline. And you're not a pirate.
Hi, Joan!
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