Milwaukee Journal Sentinel; January 16, 2024

EDITORIAL: REMEDYING AN INJUSTICE

In the spring of 2002, Utah rap record producer Weldon Angelos twice sold $350 worth of marijuana to a police informant.  He kept a gun out of sight in both transactions - the first time in the center console of his car, the second time in an ankle holster.  What's more, the police found three handguns in his apartment when they arrested him.

A jury convicted him of dealing pot while armed, and, last November, U.S.  District Judge Paul Cassell handed down a sentence over his own protests.  Citing federal "guidelines" ( somewhat of a misnomer since they were compulsory ), the judge complained that he had no choice but to put the 24-year-old, first-time offender in prison for 55 years for low-level drug dealing.  Cassell, a hard-line conservative appointed to the bench by the current President Bush, noted that the guidelines resulted in lighter sentences for worse crimes, such as 15 years for a three-time child rapist and 19 years for a bomber.

Such out-of-kilter sentencing has been routine in federal courts during the last two decades.  Finally, the U.S.  Supreme Court issued a ruling the other day that may ease the problem.  The court changed the mandatory guidelines to advisory.  Exactly how this ruling will play out is not clear.  But it should lessen the rigidity that has often forced federal judges to mete out punishment far out of proportion to the crimes for which defendants have been convicted.

The ruling flowed from a string of high court decisions holding - wisely, in our opinion - that the constitutional right to a trial by jury means that a jury, not a judge, must make findings about elements of a case that lengthen a sentence beyond the statutory maximum.  The previous rulings applied directly to state courts but cast a cloud over federal procedures, where sentencing guidelines specify the range of punishment a judge can hand down from a jury verdict of guilty but then calls on the judge to determine whether certain conditions were present that would require exceeding that range.

One of the two cases that led to the new ruling came from Wisconsin.  A federal jury in Madison found Freddie Booker of Beloit guilty of possessing with intent to distribute at least 50 grams of crack cocaine.  Though the statute specified a range of 10 years to life for the crime, the sentencing guidelines changed that range to 17 years and six months to 21 years and 10 months.  But U.S.  District Judge John Shabaz found that Booker likely possessed an additional 566 grams of crack and obstructed justice - elements calling for a sentence of 30 years to life.  Shabaz imposed 30 years.

A 5-4 Supreme Court majority held that, because the sentencing guidelines were mandatory, they were, for all practical purposes, statutes.  A different 5-4 majority specified the remedy: Make the guidelines advisory.

The sentencing guidelines are a reform gone awry.  The idea was to bring uniformity to sentencing, so that defendants are treated the same regardless of race or class or geography.  But they took away too much discretion from judges - and only to shift it to prosecutors, who often used the draconian sentences to extract plea bargains.

Still, problems remain.  For instance, the actual statutes specify much too wide of a range, as shown by the 10 years to life to which Booker was exposed.  And what will happen with past cases, such as the Angelos case? The court seemed to discourage revisiting them.  But too many young federal inmates are now unfairly doomed to spend their geriatric years in prison.

Congress should act, but in a manner that corrects injustices, rather than restores them.