A sentence on sentencing

THE growing controversy over the sentencing of federal prisoners will now likely be resolved by the United States Supreme Court. But the broader debate over the nation's public policy on crime will continue regardless. And that can only be finally adjudicated by the court of public opinion.

The new penology of the 1960s and early 1970s ran into the buzz saw of a get-tough-on-crime era about 15 years ago.

Public horror over violent crime, increasingly perpetrated by youth and often prodded by drug habits, changed the emphasis from rehabilitation to punishment and resulted in an increase in lockups.

Overcrowded US prisons and jails have forced a rethinking of some of the tougher sentencing plans and resulted in the development of incarceration alternatives. These include home confinement with electronic monitoring and court-ordered unpaid community service in lieu of prison terms for convicts considered not dangerous to society.

Vast disparities in sentencing among the states, however, and sharp public criticism of policies as being either too harsh or too lenient, resulted in the formation of an independent sentencing panel, created under the Omnibus Crime Control Act of 1984. This panel has subsequently penned guidelines for federal judges who dole out criminal penalties.

The US Sentencing Commission's regulations went into effect Nov 1. In many circumstances, these reforms place limits on judicial discretion in setting sentences, abolish shortening time served through parole, mandate stronger penalties for white-collar crime, and curb reduced-term ``good behavior'' awards.

But now the commission's guidelines have run into legal snarls that threaten their very existence.

Defendants' groups have vociferously denounced them as repressive, but they are also challenging the organizational blueprint as violative of the constitutional principle of separation of powers. This has resulted in dozens of lawsuits across the land, with varying results.

More than 80 federal district court judges have already ruled on the guidelines - with more than 50 declaring them unconstitutional.

And courts across the land continue to be sharply divided on the legality of the federal sentencing procedures. A Brownsville, Texas, judge, for example, invalidated them, while a New Orleans judge upheld them.

Legal arguments are at present under consideration in legal forums in California and Washington, D.C.

In mid-May, judges of the US Court of Appeals for the Ninth Circuit, in San Francisco, heard arguments over whether a commission appointed by the president should have the power to dictate sentences for federal crimes.

Critics argued that the guidelines, drafted by a judicial commission with Congress's authorization, violate constitutional separation-of-powers requirements and threaten the ability of the judiciary to remain free of political influence.

Defense lawyers specifically accuse the Reagan administration of interpreting its power to appoint and remove members of the sentencing commission as an authorization for President Reagan to control the panel's deliberations.

There is great concern by opponents of capital punishment, for instance, that executive branch control of the sentencing process would allow a president to appoint only commissioners who favor the death penalty.

US District Judge Harold Greene heard similar arguments challenging the guidelines in the nation's capital earlier this month.

Meanwhile, the Justice Department has indicated that it is asking the US Supreme Court to settle the matter of the constitutionality of the commission and the guidelines quickly.

The government will likely use the vehicle of a Missouri case in which a defendant awaiting sentencing on a narcotics-related charge has challenged the constitutionality of the guidelines.

A Thursday column

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