Let Punishment Fit the Crime

By Richard N. Ostling

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."

With reporting by Steven Holmes/Washington and Andrea Sachs/New York