The Court’s Common Sense on Sentencing

By: Marc H. Morial
President and CEO
National Urban League

The U.S. Supreme Court’s ruling earlier this month that restored a broader discretion in criminal sentencing to federal judges has for the moment thrown part of the federal criminal justice into an uproar.

By a slim 5-to-4 majority the Court, as expected, declared that the sentencing guidelines system passed by Congress two decades ago violated defendants’ rights by allowing judges to use a defendants’ criminal history or other facts to levy a longer sentence than the maximum statutory one the crime alone warranted.

This, the Court ruled, abrogated defendants’ Sixth Amendment protections—the right to a trial by jury and, by extension, the right to be sentenced only for the crime of which the jury found the defendant guilty. Enabling a judge to add to a sentence because of facts the jury was not permitted to consider is unconstitutional, the Court said.

However, the Court did not strike down the guidelines altogether.
Instead, in the second part of its decision, it stated, again by a 5-to-4 majority, that judges must still use the current guidelines in an advisory capacity when determining sentences.

The wrangling over this issue—over which branch of the federal government: the Congress or the judiciary—has the authority to set punishment for crimes is not finished by any means.

Federal appeals courts are likely to be deluged with appeals from federal inmates to reduce their sentences; and some conservative members of Congress have already announced their intention of re-fashioning mandatory sentencing guidelines in order to meet constitutional standards.

It’s become clear in recent years that, generally speaking, federal judges favor having more discretion in meting out sentences. On the other hand, many conservatives have asserted the mandatory guidelines that have sharply limited judicial sentencing discretion are a key plank in the fight to reduce crime.

But what’s at stake in this issue involves far more than a power-play between two branches of the federal government: That’s why the Supreme Court decision is a blow for common sense and fairness in sentencing.

The guidelines did make sentencing more uniform. But their very restrictiveness forced judges into sentences that were unduly harsh, and, in fact, unjust. That has especially been so against defendants convicted of nonviolent, low-level crimes: the guidelines have required judges to levy mandatory minimum sentences of from 5 to as much as 25 years or more without the possibility of parole and without considering mitigating circumstances.

Not surprisingly, given the dynamics of arrest and prosecution in the criminal justice system, the harsh penalties have been meted out to the poor and people of color disproportionately—but not exclusively.

In recent years those restrictions have provoked several federal judges to publicly sharply criticize the sentences they’ve been forced to hand down.

The Congressional mandatory sentencing guidelines, whose passage was buoyed by a storm of “lock-‘em-up-and-throw-away-the-key” rhetoric, has always had at its core the extraordinary implicit or explicit assertion that most judges can’t be trusted to properly sentence defendants convicted of crime.

It’s a “tougher-than-thou” posture that is strange, to say the least, unless one looks at it in the context of the longstanding compulsion of some politicians to appear to be “toughest” on crime.
Frankly, in my own political career as, first, a Louisiana state legislator, and then as a two-term Mayor of New Orleans, who successfully wrestled with that city’s serious crime problem, the number of public officials I came across who were not deeply concerned about crime and committed to reducing crime could be shoved into a very small closet.

Of course, we must be committed to properly punishing those who commit crime.

Where American society has fallen down is devoting an equal amount of resources to the social and educational programs for children and youth that we know help prevent crime, and the in-prison educational and job-training programs that give ex-inmates a better chance of finding a legitimate means of supporting themselves and their families and avoiding criminal activity once they’ve served their sentences.

The results of America’s blind obsession of recent decades with incarceration as the panacea for crime can be seen in increase of inmates in state and federal prison from 330,000 in the early 1970s to 2.1 million today; in the growing predominance of blacks and Latinos among the prison population; in the social havoc that has created in impoverished black and Latino neighborhoods; and in the fiscal skewing of state budgets to build more and more prisons the get-tough-approach to crime requires.

Fortunately, the calls for fundamental reforms across the criminal justice system are growing louder, as the social wreckage produced by America’s addiction to incarceration becomes more alarmingly clear.

That’s the broader context in which to view this Supreme Court decision: as the sound of voices of reason.

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