Gonzales Proposes New System of Sentencing

The Bush administration, asserting that federal judges are handing out lighter prison sentences since a U.S. Supreme Court decision gave them more discretion, backed Tuesday a new system of “guideline minimum” sentences for criminal cases.

The proposal by Atty. Gen. Alberto R. Gonzales seeks to give judges continued flexibility in setting prison terms while requiring them to justify any sentence lighter than the guidelines. Gonzales offered few details but said serious consideration should be given for such an approach.

The proposal appears to fall short of calls supported by some members of Congress to mandate minimum sentences for certain crimes, stripping judges of any ability to moderate sentences.

Gonzales was responding to what the administration said was evidence of a recent drift toward lighter sentences by federal judges and an increasing disparity in the sentences that defendants across the country received for similar crimes.

The trend, officials said, was the result of a high court decision in January holding that the 2-decade-old federal sentencing guidelines, which conservatives have tied to declining violent crime rates, were no longer binding for federal judges.

“More and more frequently, judges are exercising their discretion to impose sentences that depart from the carefully considered ranges developed by the U.S. Sentencing Commission,” Gonzales said at a conference sponsored by the National Center for Victims of Crime. “In the process, we risk losing a sentencing system that requires serious sentences for serious offenders and helps prevent disparate sentences for equally serious crimes.”

The sentencing guidelines, adopted in 1987, were created in an effort by Congress to ensure that defendants received similar sentences for similar crimes throughout the federal court system. Judges were instructed that certain factors, such as the amount of drugs involved in a crime, or the losses suffered in an investment scam, would call for a higher or lower prison term.

But the Supreme Court held in January that making the system mandatory threatened a defendant’s 6th Amendment right to a jury trial because it empowered judges to change sentences based on factors that juries never considered. The court allowed the guidelines to stay in place by ruling that they were advisory and that judges could ignore them.

According to Gonzales, many judges have done just that, threatening to undermine the purposes of the sentencing laws. Citing U.S. Sentencing Commission data, he said the percentage of cases in which judges departed from the guidelines rose to 12.7% since the court’s ruling, compared with 7.5% in fiscal 2003.

Though judges render sentences within the guidelines in the majority of cases, the number has been declining, he said.

The resulting sentences have created distortions and sent the wrong message to criminals and their victims, Gonzales said. He cited the case of a New York defendant in a child pornography case who received probation although a New Jersey defendant facing a similar charge was given 41 months. A South Carolina man who pleaded guilty to federal weapons and drug trafficking charges faced as many as 27 years in prison, but the judge sentenced him to 10, Gonzales said.

Other defendants have used the Supreme Court ruling to win new and shorter sentences, including a New York defendant who was sentenced in 2003 to 41 months in prison for evading taxes by, among other things, moving a fleet of luxury cars offshore. The defendant petitioned the court for a resentencing and the judge reduced his sentence to seven months in prison and seven months of home confinement, citing the defendant’s age and his need to take care of his wife -- “not normally relevant sentencing factors,” the attorney general said.

The proposal Gonzales endorsed would essentially restore the system to the way it operated before the Supreme Court acted, except that judges would have to adhere only to the guideline minimum and not to a maximum punishment. Justice officials said they thought the move would pass constitutional muster with the court.

Under the 1987 guidelines, judges were allowed to depart from the guidelines where the formulaic sentencing system permitted.

A Justice Department official, elaborating on Gonzales’ remarks on condition of anonymity because of department policy, said the proposal “does not mean that there would not be the ability to review individual facts in an individual case and depart downward for factually and legally justifiable reasons.”

Though many details remain unclear, “from a certain perspective, you can read this proposal as a middle ground,” said Frank Bowman, a sentencing expert at the University of Missouri-Columbia law school.

Republicans in Congress are pushing legislation for mandatory minimum sentences for drug and other crimes that would “deprive judges of virtually any sentencing discretion at all,” Bowman said. “Where the Justice Department is in all of this is a little more nuanced.... I think they are at least ambivalent about some of the more extreme measures.”

Experts across the political spectrum have questioned the need to act now, and said the current system should be given more time to work.

Philip B. Heymann, a Harvard law professor who was a deputy attorney general in the Clinton administration, and Edwin Meese, President Reagan’s attorney general, have together urged Congress to move slowly in the area of sentencing reform and have advocated that judges have flexibility in prescribing punishment.

The judiciary itself has long chafed at the strictures of the sentencing laws, saying they unduly curtail their ability to do justice in individual cases.

“Unless you are going to have a one-size-fits-all system that completely eliminates the judge forever, you have to accept some degree of idiosyncratic behavior,” said Paul Rosenzweig, a senior legal research fellow at the conservative Heritage Foundation in Washington.

The statistical evidence that Gonzales cites, he said, “isn’t in my mind a clarion call for reform. At this juncture you should take a year to see what happens, to see whether these numbers are part of a trend.”