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January 14, 2005



PAUL GIGOT: Welcome to THE JOURNAL EDITORIAL REPORT.This week the Supreme Court reopened the struggle between the courts and Congress over who decides the punishment of criminals. Even in the face of evidence that tougher prison sentences have helped reduce the crime rate, the court ruled that judges should regard congressional guidelines on sentencing as advisory, not mandatory. It seems certain that Congress will consider new rules on sentencing very quickly.

With me to discuss all this are: Melanie Kirkpatrick, associate editor of the editorial page; Rob Pollock, senior editorial page writer; and Bret Stephens, a member of the editorial board. Melanie, these guidelines were first passed in 1984, 20 years ago. How did we get them? Why did they come about?

MELANIE KIRKPATRICK: It's hard to remember now, when the country is enjoying a lowest rate of violent crime in 30 years, but back in 1984 we were just coming out of the Dirty Harry era. People were really upset about the increase in violent crime and also upset about the disparities in sentencing. Liberals didn't like conservative judges who would send somebody away for life and conservatives didn't like liberal judges, who would let people off. So Congress decided to form a bipartisan commission to come up with guidelines to give judges in order to make the sentences more uniform throughout the country.

PAUL GIGOT: Well, 20 years later crime is down. Why throw out a good thing, Bret?

BRET STEPHENS: Well that's a very good question. I think the Supreme Court has stirred up a hornet's nest. I think it's created a lot of trouble when this whole decision was supposed to have resolved some questions. Right now these guidelines are supposedly advisory, but they effectively become meaningless. It means an end to uniformity in sentences, which was one of the reasons why we imposed this in the first place. It's going to be lighter sentences. And worst of all, I think it's going to mean a congressional over-reaction, because Congress is going to come back and find other ways to, say, impose a wider range of minimum sentences on various kinds of federal crime in ways that we can't anticipate now, but might not make matters that much better for a later Supreme Court to consider.

PAUL GIGOT: You don't have any confidence that judges are going to react to this in a responsible way, do you?


PAUL GIGOT: Okay. Rob, how do you see it?

ROB POLLOCK: Well, before we overreact, let's remember that the vast majority of violent crimes are dealt with at the state and local level. And what we're talking about here are largely white collar crimes and drug crimes.

PAUL GIGOT: It's still 60,000 a year.

ROB POLLOCK: Well, it's 60,000 a year. But I think it's a stretch to say that because we've been putting people in prison under these guidelines that's been the major factor in the reduction of violent crime. That's largely handled at the state level.

PAUL GIGOT: Okay, but what do you think the consequences are going to be? Is it really going to be some trouble with judges saying suddenly, "I've got all control now and I'm going to go back to the era where I think -- I don't agree with the drug laws, so I'm going to go back and give lighter sentences."

ROB POLLOCK: Well, I guess I'm the bleeding heart on the panel today, but I never thought that there was a big problem with judges giving too lenient sentences. That wasn't the big issue. And what we have here in these guidelines aren't really codifications of things that were ever debated. What happened, basically, is Congress got into a bidding war with itself over who was going to look tougher on crime. They basically pulled penalties out of thin air, and that's what's in these guidelines. Frankly, I'm not sorry to see them go.

MELANIE KIRKPATRICK: I can understand why judges hate them. They're 1,800 pages long, and that's really micro-management by Congress. But, at the same time, under our system of government, I don't think judges are the last word on this subject. The people, through their elected representatives in Congress, surely have a say in how criminals are treated.

BRET STEPHENS: Well no, I agree with that. I think another point to be made is right now you have all these cases in which judges have imposed sentences beyond what juries found. Now what's going to happen with these cases? The Supreme Court has said, well hang on, this doesn't really apply retroactively. But right now defense attorneys are gearing up all over the country to fight battles that were supposedly settled. And I think what you're going to find is our judiciary system completely flooded in light of Wednesday's ruling.

MELANIE KIRKPATRICK: I think that's very possible, and it's certainly -- for sure what's going to happen is that you're going to have some jurisdictions imposing sentences that are much lighter, and other jurisdictions imposing much heavier sentences.

PAUL GIGOT: I think the other thing is, politically, Rob, this is a blunt instrument, sentencing guidelines are, there's no question about it. But it's the kind of blunt instrument Congress uses to get the attention of a judiciary that it thought had lost its way. And maybe we needed that to get its attention. How else does our system of checks and balances work?

ROB POLLOCK: Well, another way to look at it -- if you've got a problem with the way judges are acting, another way to approach it is to work through the political system to get better judges, either by electing executives who will appoint better judges or by electing better judges directly.

PAUL GIGOT: Okay, Melanie, we're going to get some reaction from Congress. What do we think it is likely to do this year in response?

MELANIE KIRKPATRICK: Well, the first thing it will do is hold hearings. Senator Specter, the new chairman of the Senate Judiciary Committee, has already indicated he is going to do that very quickly. Then it'll probably look for some kind of quick fix. And I agree with -- I think it was Brett who said that it'll probably be a little too extreme.

PAUL GIGOT: So another blunt instrument?

MELANIE KIRKPATRICK: Probably. But one thing it could do very quickly is to impose a lot of mandatory minimum sentences.

PAUL GIGOT: Right, okay, all right. On a variety of different crimes. Which, in a way, is even more onerous for some crimes than the more flexible sentencing guidelines.

MELANIE KIRKPATRICK: Oh absolutely. I think judges are going to be really sorry that this happened.

PAUL GIGOT: Okay. You get the last word, Melanie. Next subject.