Federal Courts The Judges Need Those Guidelines

Posted: June 03, 1988

One trouble with federal judges is that they spend most of their lives in a warm milk bath of adulation. Accountable to no one, protected by life tenure, they take on the trappings of hereditary monarchs. We are seeing the phenomenon all over the country in the judges' revolt against federal guidelines for sentencing criminals. The guidelines are tough. Some of the protesting judges are woefully soft.

Consider the U.S. district judge. His public day begins when the bailiff cries "All rise!" as he sweeps into court. From that moment, what he hears

mainly is "May it please the court," and "If your honor please." Lawyers fawn in his presence. Courtroom spectators cringe before his gelid eye. The power and the glory affect the best of men.

Until this past November, when the new guidelines became operative, federal judges had very nearly absolute discretion over the sentences they could impose. The guidelines were intended to take away much of that discretion and to restore some measure of legislative control. Many judges felt wounded in their dignity, where it hurts worst. As of last week, 59 federal judges had declared the guidelines "unconstitutional" and refused to abide by them.

This rebellion of the judges has to be put down, and it ought to be put down promptly. Who do these fellows think they are? Congress has power to define federal crimes and to fix punishments for their violation. In the matter at hand, Congress created a blue-ribbon commission to study the erratic pattern of criminal justice in our federal courts.

Congress received the commission's report, and through the Sentencing Reform Act of 1984 Congress accepted the commission's recommendations. The notion that the guidelines are unconstitutional because judges served on the

commission is hokum. This is taking the doctrine of separation of powers and jumping off a cliff with it.

The findings of the U.S. Sentencing Commission were, in a word, devastating. Lenient federal judges were giving mere wrist slaps, and often not even that, to defendants found guilty of serious crimes. Nonviolent offenses were going widely unpunished. Virtually identical crimes, committed by offenders with virtually identical pre-sentence reports, were drawing wildly variant sentences.

Thus the commission came up with guidelines intended to be both uniform and tough. One idea is to get hardened criminals off the streets and into prison. Never mind "rehabilitation." The commission dismisses the thought. Its goals are to punish, to incarcerate and to deter. Second convictions should draw longer terms than first convictions, and a third conviction should result in still longer prison time.

The guidelines abolish federal parole. For the first time, such economic ''white-collar" crimes as price-fixing must be taken seriously. At present, roughly 60 percent of those convicted of fraud serve no time at all. The commission predicts that under its guidelines, only 24 percent would escape without at least some time behind bars.

Many of the reforms are directed toward the traffic in narcotic drugs. By requiring certain minimum sentences, and by cracking down on repeat offenders, the guidelines - if only judges would apply them - would result in jailing many drug dealers who now go free. The commission found that the average time served for all drug offenses is now 23 months. This would increase to nearly 58 months.

Along the same line, sentences for homicide, rape and kidnapping would effectively double, from an average of 38 months to 75 months. Under former sentencing practices, 41 percent of federal offenders spent zero time in prison. Under the guidelines, the commission projects that fewer than 19 percent will go free on probation.

The criticism is made that the guidelines are too rigid, that they operate too mechanically, that the point system gives insufficient account to human factors that cannot be quantified by computer. Maybe so, but the guidelines leave federal judges much leeway. All that is required is that they explain in writing why a light sentence should be imposed instead of a heavy one.

The protesting federal judges brought these guidelines on themselves. If they had been more sensitive to the public outcry against lax sentences, perhaps the reform act never would have passed. Until the Supreme Court overturns the guidelines, they stand as part of the supreme law of the land. Even federal judges, divine beings though they may be, have a duty to treat them with respect.