Wednesday, Sep 28, 2016
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Double, but clear, vision?

IN THE best of outcomes, U.S. Supreme Court decisions serve as a beacon that illuminates certain legal precepts and allows lawyers and lay people dealing with similar facts to navigate around the shoals of the law.

But in two cases concerning whether federal sentencing guidelines violate the Constitution's Sixth Amendment, the Supreme Court last week brought more initial confusion than clarity. Nevertheless, although the court divided along different lines in these tandem cases, the overall effect may be to bring some wisdom out of the muddle.

The court has performed a sort of ingenious balancing act, reaching a harmonious conclusion despite its shifting alliances (only Justice Ruth Bader Ginsburg was counted among both majorities).

The first part of these decisions was expected. Last June, the Supreme Court held that Washington state's sentencing guidelines were invalid because they allowed sentences in criminal cases to be expanded on the basis of assertions never weighed by a jury. Thus it followed that the Supreme Court would find a similar defect in the federal sentencing guidelines, which it did by the first of its 5-4 majorities.

This decision corrected an obvious injustice. The idea that allegations not proved to a jury beyond a reasonable doubt should be used as a basis for increasing the sentences of convicted defendants is a basic unfairness, one incompatible with the nation's commitment to individual rights.

But what then of the sentencing guidelines that permit such practices? As a matter of logic, do they not also offend the Sixth Amendment, and if so, should they be discarded in their entirety? The problem, of course, is that the will of Congress was to reduce disparities between sentences with guidelines that would reduce the discretion of judges.

Justice Stephen G. Breyer cleverly answered that riddle by keeping the guidelines but declaring them to be advisory, not mandatory. Instead of treating the guidelines like holy legal text, judges can now become like those theologians who take the Bible seriously but not literally. They must consult the guidelines but are free to exercise their discretion as long as their sentences can pass a reasonableness test.

But Congress didn't want judges to have too much discretion, which was the underlying motivation for imposing guidelines in the first place. Justice Breyer's finding preserves the system but at the same time gently subverts it, a have-your-cake-and-eat-it solution that is bound to give Congress indigestion.

As far as we are concerned, loosening the straitjacket on judges while still requiring them to consult guidelines is a fair compromise, even if the Supreme Court put itself in knots reaching it.

However, as Justice Breyer acknowledged in his opinion, "Ours, of course, is not the last word. The ball now lies in Congress' court." Just the same, lawmakers ought to wait to see how these decisions work in practice before putting their own spin on that ball.

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