Beyond Reasonable Doubts: Guidelines and Justice

BreakPoint with Charles Colson ^ | January 25, 2005 | Mark Earley

[Mr. Silverback]

Note: This commentary was delivered by Prison Fellowship President Mark Earley.

In 2003, a federal court found Freddy Booker guilty of possessing approximately ninety-two grams of crack cocaine. Under the Federal Sentencing Guidelines, that conviction called for seventeen to twenty-two years in prison. Instead, the judge sentenced Booker to thirty years.

Booker appealed his sentence to the Supreme Court, and last week the Court ruled in his favor. The result is a chance to re-visit our approach to crime and punishment.

Chuck Colson has told “BreakPoint” listeners before about the injustices caused by the sentencing guidelines: In the name of predictability, they remove all discretion from judges and make justice a one-size-fits-all operation. When the guidelines are combined with mandatory minimum sentences, the results are even more bizarre and counterproductive.

In Booker’s case, the judge increased his sentence because the guidelines permitted him to consider evidence that had never been presented to the jury—evidence that did not have to be proven beyond a reasonable doubt, but only by a preponderance of the evidence.

On January 12, the Supreme Court agreed. It found that the Constitution requires that a jury find a defendant “guilty of all the elements of the crime with which he is charged”—a jury, not simply a judge.

It is equally settled that the standard of proof required by the Constitution is “beyond a reasonable doubt.” Labeling a fact “a sentencing factor” instead of an “element,” as the Guidelines do, doesn’t change these constitutional requirements.

The Court also found that, ultimately, the Guidelines undermine the role of the jury in “standing between the individual and the power of the government.” This is crucial because, after all, the government enjoys a monopoly on the power to deprive a person of life and liberty. In the Booker ruling, the procedures the Court overturned allowed prosecutors to circumvent the jury system in sentencing.

Contrary to what you may have heard, the Court didn’t overturn the entire Guidelines. But what it did overturn was so central to the way they are applied that Congress will have to revisit the federal government’s approach to crime and punishment.

We welcome this development. Chuck, for nearly thirty years, and I, over the last three years, have been visiting prisons and have seen the same thing: men and women confined for twenty to thirty years for relatively lesser offenses, others getting off lightly. The Guidelines have not produced justice, only bitterness. It is true that increasing sentences and eliminating judicial discretion was a way for politicians to appear “tough on crime,” especially drugs. I know that firsthand from my time as a state senator and attorney general. Even if the results were grossly unfair, criticizing the system left you open to a charge of being “soft on crime.”

Now the Court’s decision, along with a dropping crime rate, makes reasoned debate possible once again. Christians, who understand that doing justice is a matter of wisdom, not fear, should give their representatives the permission they need to resist political posturing and undo past mistakes. Then, perhaps the fairness and wisdom of our system will also be beyond any reasonable doubt.

[Mr. Silverback]

I agree with Earley, and I certainly think that sentencing guidlines have allowed us to be far less vigilant when it comes to judicial conduct. What we need is an impeachment or two, not guidlines that send people away for murder-level sentences over drug possession.

[Mr. Silverback]

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[newgeezer]

Sentencing guidelines often seem like little more than the knee-jerk results of "tough-on-crime" political grandstanding. No career politician wants to give an opponent any reason to say he's soft on crime.

When drug possession results in 20 years behind bars, something is terribly wrong with our system. And don't tell me about how drugs beget violence. Punish the violence.

[Mr. Silverback]

I'm a supporter of the drug war, and I agree 100%. In the case of drug possession, short jail time or treatment is appropriate. Giving someone twenty years for smoking crack is no less stupid than hate crime laws, and certainly constitutes cruel and unusual punishment.

[Libertarianize the GOP]

I support sentencing guidelines which allow a Judge some discretion. Variation from the guidelines should require a written explanation by the Judge and should be a decision that can be appealed by either the prosecution or the defense. A Judge who is consistently overruled on appeal should be removed from the bench, a Judge who is willing to buck the Guidelines and then is consistently upheld should be promoted to an Appeals Court.

[TKDietz]

I'm not a fan of the way we fight the war on drugs, but people on this thread so far are characterizing this as a simple possession case. A crack addict is not going to have 92 grams for personal use. That's over 3 ounces. That's an awful lot of little $10 and $20 crack rocks. This isn't a drug kingpin amount by any means, but it's definitely a "possession with intent to distribute" amount worth probably at least a couple of grand or maybe even twice that or more if sold retail. I don't know what crack sells for but it's my understanding that powdered cocaine is going for somewhere around a $1000 an ounce where I live and $60 or so a gram.

[TKDietz]

Still though having to spend at least 25.5 years before being eligible for release on something like this seems excessive when murders and rapists often do less time. If we keep locking up low level drug offenders for so many years at the rate we've been doing it we'll end up going bankrupt trying to keep up with the costs of warehousing so many people for so long and continually building new prisons and jails to cover the overflow. We're at around 2.1 million in prisons and jails in this country today, which according to worldwide statistics is more than any other country in the world including places like Russia and China, and our per capita incarceration rate is also the highest in the world. The per capita rate is several times what it was here in the mid 1970's just before when went nuts with prison in this country. Before that it had remained relatively flat since we started keeping these statistics around 1925. Now at least in my state our legislature keeps having to pass bills letting people out of state prisons earlier and earlier before their parole eligibility dates because we simply cannot afford to keep building so many new prisons and jails. Our system is overflowing.