NEWS

October 4, 2007
Allow judges flexibility in deciding sentences
But make clear to all what the rules are.

In an oral argument on an Iowa case involving federal sentencing rules Tuesday, the U.S. Supreme Court seemed hopelessly confused about what direction to take. Pity the poor judges in the lower courts who must apply whatever the justices ultimately decide.

If the Supreme Court follows its practice of recent decades, individual justices will write separate opinions that narrowly carve the issue in many different slices. That may be a fine intellectual exercise, but there are times when the court must rule on the meaning of the law that will guide the courts, and the nation. This is one such time.

The issue before the court Tuesday was whether the federal criminal-sentencing guidelines are suggested or mandatory. The case came from Des Moines, where U.S. District Judge Robert Pratt sentenced Brian Gall of Eldridge to three years' probation rather than to prison for up to three years, as called for in the sentencing guidelines. The Federal Sentencing Commission, which writes the guidelines, sees only in hypotheticals. But Judge Pratt had first-hand experience to conclude that prison would be pointless in this case, where an otherwise law-abiding defendant made a mistake and had already turned his life around.

Although the Supreme Court ruled in 2005 that the sentencing guidelines cannot be mandatory under the Sixth Amendment, many appeals courts have established rules that have effectively rendered them mandatory. Based on their questions Tuesday, the justices are unlikely to uphold such rigid application of the rules.

Justice Antonin Scalia said that the court earlier "made it very clear that the guidelines are advisory" and that the lawyer representing the U.S. Justice Department, which sets policy in federal prosecutions, was "blowing smoke" when he argued that the guidelines are treated as advisory. Rather, Scalia said, a trial judge who departs too much from the guidelines will "be held to account" on appeal.

Just as Pratt was held to account in the Gall case. Yet, Justice Stephen Breyer suggested, Gall's might be "the strongest case imaginable for [giving] discretion to the district judge." As a 21-year-old University of Iowa student, Gall got involved in a drug conspiracy as a low-level dealer of "ecstasy" tablets. But he saw the error of his ways, quit selling drugs, finished college and started a construction business in Arizona.

The goal of the guidelines - producing uniformity in criminal sentences - is valid in the abstract but difficult to execute in real cases. The challenge for appeals courts is what standard to apply in reviewing such sentencing decisions for uniformity. In the course of Tuesday's hour-long argument, eight of the nine justices interrupted Gall's lawyer and the U.S. government counsel no fewer than 113 times with questions and comments as they cast about for a standard to apply in such cases.

The answer, as Justice John Paul Stevens suggested Tuesday, may lie in the traditional common-law process, where the law is built one case at a time within a framework written by Congress. Whatever the court does, though, it must preserve the authority of trial judges to fashion criminal sentences that fit the unique elements of individual cases rather than blindly adhere to arbitrary rules that end up being uniformly unfair.

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