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No Room for Judgment


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Source: St. Petersburg Times (FL)
Published: November 29, 2003
Copyright: 2003 St. Petersburg Times
Contact: [email protected]

A Times Editorial

In a speech before the American Bar Association in August, U.S. Supreme Court Justice Anthony Kennedy decried current federal sentencing practices as too harsh. "Our resources are misspent, our punishments too severe, our sentences too long," he said. "The federal sentencing guidelines should be revised downward." 

But Kennedy, a Reagan appointee, was spitting in the wind. The Bush administration and the Republican-controlled Congress have been moving things in precisely the opposite direction, stiffening penalties for federal offenses and making it more difficult for judges to offer any leniency. Attorney General John Ashcroft, with the help of Congress, has been on a crusade to eliminate independent judicial judgment on sentencing. The names of judges who have the temerity to depart downward from the federal sentencing guidelines wind up on a Justice Department watch list.

Now comes the Drug Sentencing Reform Act soon to be introduced by Rep. Mark Souder, R-Indiana. It would further strip away judicial discretion in sentencing, transforming the role of federal judges into that of little more than a calculator.

The bill would constrain judges from considering the unique factors surrounding each case, such as a defendant's background and other mitigations, when sentencing drug offenses. It is an expansion of the so-called "Feeney" amendment passed earlier this year, in which such considerations were limited in sex offenses.

The bill would direct the U.S. Sentencing Commission to make it clear that judges are not to consider a defendant's education, employment record or family ties, among other factors, in sentencing for drug crimes. Contrary to the American legal tradition, it essentially says: no compassion or tailoring of sentences to fit the individual circumstances of the crime allowed.

In a nasty provision directed toward women in the drug trade who are coerced to participate by abusive boyfriends, Souder's bill would instruct the Sentencing Commission to eliminate the potential for a lesser sentence in these types of cases. If these women made any kind of profit from the drug sales, the fact that they were forced into it by their partners would make no difference.

The bill would also mandate random drug testing for every federal probationer, even if the underlying offense were not a drug crime - an incredible waste of money. And it would enhance penalties for growing or selling "high potency" marijuana, defined as having a THC level of over 6 percent. This is another federal attempt to shut down medical marijuana cultivation in the states where it has been legalized. AIDS, cancer and other patients who use marijuana as medicine tend to utilize the higher potency varieties in order to relieve their suffering with a minimum of smoking.

Giving judges the ability to bring their judgment and sensibilities to bear on individual cases is a hallmark of our legal system. Souder's legislation would undermine this authority and hand significantly more power to the Justice Department. Once judges are denied any flexibility in sentencing, the entire case is driven by the way the prosecutor charges. The bill's passage would be another win for Ashcroft and another big loss for justice.

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