Supremes Screw the Pooch

When the Supreme Court seeks to clarify matters, to find order out of chaos, it sometimes succeeds in making things worse.

That was certainly the consequence of Roe v. Wade, a 1973 decision that Justice Harry Blackmun (who wrote the opinion) believed would settle the issue of abortion once and for all. Instead, by choosing to circumvent the political process and invent a novel right to privacy, the court created the modern anti-abortion movement. The intent of Roe may well have been benign – to reserve the abortion option in law – but does anyone believe that it settled the issue?

The same, unfortunately, may well be said about its 5-to-4 rulings last week on mandatory federal sentencing guidelines.

To begin with, as it sometimes does, the court issued a relatively ambiguous message. It struck down the mandatory federal guidelines, which have been in effect since 1987, as unconstitutional _ a welcome development. But it also produced a second ruling to the effect that judges should regard those guidelines as advisory, instructing them to follow them, as much as possible, in meting out punishment. Some judges will feel obliged to stick to the guidelines, but others will not.

The result? No one is happy. The people who like mandatory minimum sentences are furious that federal magistrates will now have discretion, and sentences will be disparate in different courts and jurisdictions. A crime that may strike a federal judge in Texas as serious business may seem less onerous to a colleague in New York, or vice versa. Those disparities will lead to confusion and uncertainty – and, in due course, to a legislative remedy.

Alas, legislative “remedies” are often the political equivalent of patent medicine: They sound good, and appeal to customers, but are often ineffective, and sometimes worse than the malady. That is why opponents of mandatory minimum sentences are nervous as well. All the arguments that prompted Congress to act 18 years ago will be revived. They might well yield new sentencing laws more draconian than the last, and crafted to satisfy the narrow court majority.

Critics of the court will complain that the absence of mandatory guidelines will lead to chaos and disparity, but that was not what prompted Congress to act in the first place. It is true that certain crimes have been treated more harshly in certain circuits than others, but Congress was inspired exclusively by the notion that certain judges were too lenient in their sentences.

Like welfare Cadillacs and Pentagon toilet seats, lenient judges are a popular public villain – even if evidence for their existence is fleeting. The truth is that, for the most part, the practical consequence of mandatory guidelines has been two decades of unduly harsh, extended prison terms for nonviolent offenders convicted of drug crimes.

That the American prison population has exploded in recent years is due not to superior police work, but to demographic changes and cruel sentences for transgressions that are difficult to classify as serious offenses. Or put another way, we are filling up the federal prisons with many people who probably shouldn’t be imprisoned at all.

I am not, of course, talking about big-time drug dealers, or people who commit violent crimes associated with trafficking. But are we entirely comfortable, as a society, with incarcerating people – for 10, 20, 30 years – who are basically addicted to opiates? It would not occur to us to throw smokers behind bars – not yet, anyway – or imprison athletes who use steroids. But the impulse to punish junkies, small-time dealers and casual consumers of “recreational” drugs is grounded in social attitudes, not the fight against crime.

Which leads to one uncomfortable truth: For some things, there is no absolute legislative or judicial solution. I can appreciate the anger and frustration of those who deplore judges who might seem too solicitous toward offenders. And it would be nice to have some measure of consistency in justice. But a daily scan of the newspaper reveals routine disparities between crimes and sentences, in the same place, and the justice system will continue to treat criminals one way in New York and another in Texas.

That is not, perhaps, ideal, but when Congress proposes absolute consistency it “solves” one dilemma and produces two big problems.

The first problem is that we are a federal system, and when congressional guidelines trump local judgment, yet another prerogative of the states disappears. Problem No. 2 is that mandatory minimums, in a free society, turn our judicial system into a police state, and take problems best left to judges and courts and put them exclusively in the hands of politicians.

(Philip Terzian, The Providence Journal’s associate editor, writes a column from Washington.)