TIME: Almanac 1993/TIME Almanac 1993.iso/time/013089/01308900.002

Text File | 1992-09-23 | 3.6 KB | 73 lines

                                                                                LAW, Page 63

Let Punishment Fit the Crime


A controversial sentencing scheme gets a go-ahead


    Judges have traditionally enjoyed such leeway in meting out
jail terms that one prisoner could serve many times as long as
another for a similar crime. Concerned about unfair -- and often
overly lenient -- sentences, Congress in 1984 created the U.S.
Sentencing Commission, which issued a manual that greatly
restricts judges' discretion in sentencing 40,000 federal
defendants a year. The new system, for crimes committed since
Nov. 1, 1987, also abolished parole and sharply limited
probation and time off for good behavior.

    Defense lawyers quickly launched a legal assault against the
new system. The result was chaos, with 158 federal judges
declaring the arrangement unconstitutional and 116 ruling it to
be proper. No one could tell what penalties would be imposed or
whether they would stick. Moving briskly to end the confusion,
the U.S. Supreme Court last week upheld the commission and its
rules by a vote of 8 to 1.

    "This is one of the most important decisions handed down by
the court in this decade," said Federal Appeals Judge William
Wilkins Jr. of South Carolina, the commission's chairman. The
result, he said, will be "more uniform, fair and truthful
sentences." The impact will reach far beyond the several
thousand federal defendants who must now be resentenced. The
new system means stiffer penalties for white-collar crimes, 87%
of which currently end in probation.

    Many lawyers contend that the rules may sharply limit plea
bargaining after indictments, thus crowding court calendars. The
crunch behind bars is expected to get worse. The 50,000 inmates
jamming federal penitentiaries are already 60% more than
capacity. "We're going to see dramatic increases in prison
terms and prison overcrowding," predicts Sam Buffone, chairman
of an American Bar Association committee on the sentencing
system.

    The federal manual features a chart that puts infractions
into 43 categories and lists corresponding penalties. The
sentence is increased according to such factors as use of a
weapon, the amount of money involved and prior criminal record. A
judge can depart from the recommended numbers in unusual
circumstances but must explain why in writing; both sides can
then appeal the sentence.

    In the case decided by the Supreme Court last week, which
stemmed from a 1987 Kansas City cocaine bust, the sentencing
chart called for a 15-to-21-month jail term for defendant John
Mistretta. The federal district court had given him 18 months,
but Mistretta's lawyer argued that the sentencing system
violated the Constitution by blurring the separation of powers
among the branches of Government. Congress had, for instance,
given both legislative and executive functions to a commission
within the judicial branch. The commission's recommendations
have the force of law unless Congress vetoes them within six
months. Justice Harry Blackmun's majority decision admitted
that this setup is an "unusual hybrid" but said Congress had
been "practical" in asking experts to handle a technical task.

    Although the opponents have lost the separation-of-powers
argument, they have already filed numerous other cases
contending that the restrictions on sentencing violate due
process of law. The Mistretta case, says President Ephraim
Margolin of the National Association of Criminal Defense
Lawyers, is merely the "opening shot in a lengthy campaign."