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ELIZABETH FARNSWORTH: For more on today’s Supreme Court hearing, we’re joined by Stuart Taylor, correspondent for the “American Lawyer” and “Legal Times,” and a regular on the NewsHour. Welcome, Stuart. What was happening in 1984 that caused Congress to want these guidelines, to begin the process of drawing up the guidelines?
STUART TAYLOR, The American Lawyer: There was a lot of criticism at that time that the traditional method of criminal sentencing, which is letting the judge decide what he thinks is the appropriate sentence out of a huge range of possibilities was leading to wild disparities over the country, depending not so much on the nature of the crime and the criminal as on the judge. Soft judges were giving light sentences to people who did terrible things. Hard, tough judges were giving heavy sentences to people who did less serious things, and there was a convergence of liberal reformers who didn’t like these disparities and conservatives who were worried about some judges mollycoddling criminals, came together and said let’s have some uniformity, let’s tie these judges down to some guidelines so that the sentence doesn’t depend on who the judge is.
ELIZABETH FARNSWORTH: And how do the guidelines work? They’re very complicated.
MR. TAYLOR: Right. That principle was carried to very detailed specification initially by Congress but in more detail by the sentencing commission that Congress created of how much the sentence ought to be for every one of the zillion crimes in the federal criminal code, and then with adjustments upwards for the criminal record, and the, the embodiment of it is all this grid which is actually what a federal judge is supposed to use when he passes sentence. You look at the offense level and in this case, for example, these two police officers, they said, we start with six, because they violated the civil rights of Rodney King, and then–
ELIZABETH FARNSWORTH: So it’s all reduced to numbers.
MR. TAYLOR: Right. We had 15, and that’s the complaint a lot of judges have. They’ve taken the human element out of sentencing. Some judges complain, they’re reduced it all to a numbers game. We aren’t supposed to be computers; this is too rigid, that’s part of the background there.
ELIZABETH FARNSWORTH: Do you have any sense that most judges don’t like the guidelines? Is there any research on that?
MR. TAYLOR: There’s been a lot of anecdotal material and a lot of resolutions passed by various judicial bodies over time indicating–although judges tend to be a little bit wary of taking public positions on this. I have the sense that there’s very widespread unhappiness among federal judges about this and not limited to the Democratic appointed Carter and Clinton judges who one thinks might be more sympathetic to criminal defendants. I’ve talked to a lot of Reagan-appointed judges, former prosecutors, who think these guidelines are too inflexible and often too harsh.
ELIZABETH FARNSWORTH: And that’s really what this case is about, whether they are too inflexible?
MR. TAYLOR: Not exactly. This case is about how inflexible they are. The Supreme Court is being called upon in this case to decide whether the guidelines allow judges a fair amount of freedom to depart from the guidelines and give a lesser or for that matter a greater sentence, based on what they think are unusual factors in the case, or whether the judges are really obliged to stick to the numbers rigidly, except in the most extraordinary cases. In this case, for example, Judge John Davies, who sentenced the two police officers for beating Rodney King, gave them a much lesser sentence that the guidelines would have called for, because of a bunch of factors.
ELIZABETH FARNSWORTH: How much less? Let’s get that clear.
MR. TAYLOR: He gave them each two and a half years. And if he’d just stuck to the guideline sentence, he would have given them more like six or seven years. And he–
ELIZABETH FARNSWORTH: And Jeff explained why he did that, the various factors that led him to do that.
MR. TAYLOR: Yes. And in the federal appeals court, which heard the case on appeal by the prosecution, said that Judge Davies had erred, that he had misapplied the law, and that all of the reasons he had given for departing downward from the guideline sentence were invalid. That, the defendants in turn, who have now been released from prison, would have to go back for a long time if they lose, have appealed to the Supreme Court to try and avoid that.
ELIZABETH FARNSWORTH: And what happened in the Supreme Court today?
MR. TAYLOR: The court made it clear, the various justices in their questions, that they see this case as an important question that involves thousands and thousands of cases and that they’re less concerned about what happens to these two former police officers than they are about the precedent they set and how it will affect many other cases. Justice Breyer, for example, said at one point, I’m more concerned about the general principle here than about the facts of the case, that this will affect thousands and thousands of cases, 50,000 a year, he said. It’s less clear who’s going to win. This case was harder to read than a lot of them in terms of some of the Justices gave hard questions to each side, and didn’t really show how they were leaning with any clarity.
ELIZABETH FARNSWORTH: You couldn’t tell at all from what was said?
MR. TAYLOR: I wouldn’t bet money on the outcome of this case. I thought that some of the Justices, and particularly Justice Breyer and Justice Souter, seemed sympathetic to the police officers, the defendants’ arguments the Judges should have fairly broad discretion to depart downward from the guidelines as was done in this case but that they weren’t necessarily buying that argument across-the-board, because the Judge here cited a whole bunch of different factors for departing downward, and it sounded like some of the Justices might be more persuaded by some of them than by others.
ELIZABETH FARNSWORTH: And Justice Breyer actually helped write the guidelines, didn’t he?
MR. TAYLOR: He had an important hand both when Congress drafted the Reform Act in 1984 he was the senior staffer on the Judiciary Committee, working for Sen. Kennedy, who had a very important role in drafting them, and then he was one of the first members of the sentencing commission and had a very important role in drafting the guidelines, themselves. Then as a federal appellate judge, before he joined the Supreme Court, he decided some more important precedents. So he comes to this case with a lot of experience in the matter.
ELIZABETH FARNSWORTH: This is an unusual case, isn’t it, in that the issue of judicial discretion with the guidelines is often championed by lawyers for criminal defendants and not so often by police officers, who want them to be applied right down the line, and yet here the police officer is making that argument?
MR. TAYLOR: It is an irony of this case. In fact, there are two police organizations that are friends of the court in this case backing up the police officers, and they are making the same argument that the National Association of Criminal Defense Lawyers is making, which is that the important general principle in this case is that Judges ought to be able to show mercy, to depart downward from the guideline sentence in a fairly wide variety of cases. And it is odd to see police officers arguing that principle, but of course, when police officers are defendants, they see things the way other defendants do.
ELIZABETH FARNSWORTH: And you said that Stacy Koon and Lawrence Powell are now out of, of prison. For how long might they go back if the case is decided against them?
MR. TAYLOR: They could go back for four or five years, depending on if they lose on every issue across-the-board, they’ll probably do at least four more years. They’ve served a little over two years now. They got out early on their two and a half year sentences because of good behavior in prison, and they do face the prospect of going back for a long time.
ELIZABETH FARNSWORTH: Thank you, Stuart.
MR. TAYLOR: Thank you.