Federal Sentencing: Just Say No to Sensenbrenner
The Milwaukee Journal Sentinel takes on Wisconsin's Jim Sensenbrenner, who wants to take away the sentencing discretion that the Supreme Court handed to federal judges with the Booker decision:
He mustn't. The old system straitjacketed judges too much, such as Utah's U.S. District Judge Paul Cassell, known as a hard-line conservative. He lamented from the bench that he had no choice but to put a first-time offender in prison for 55 years for dealing marijuana. Justice demands that judges be allowed to exercise discretion. Otherwise, you may as well replace him or her with a computer program.
The Journal Sentinel recognizes that judicial discretion is an essential balance to prosecutorial discretion.
The rationale behind mandatory sentencing is that it keeps punishment uniform. But it only seems to do so. It simply transfers discretion from the judge to the prosecutor, who exercises it by choosing which charges to bring or whether to bring any at all. Prosecutors use the draconian sentences as a club to extract plea bargains.
The system allows U.S. attorneys to dish out leniency in exchange for cooperation. Thus, suspects with much information to trade can get light sentences. One consequence is that drug ringleaders have gotten much shorter sentences than defendants only tangentially connected to the ring, such as a leader's girlfriend, since the latter has little information to swap. Giving the judge discretion can prevent such injustices.
The Journal Sentinel echos a point TalkLeft recently rcently made: there's no need for change.
Judges are by and large heeding the guidelines. Yet they retain the ability to depart from them in the interest of justice. Congress mustn't take that flexibility away again.
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