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Just sentences require judicial discretion [Libertarian Bankruptcy - Proof # 1]
townhall.com ^ | August 15, 2003 | Jacob Sullum

Posted on 08/15/2003 1:25:57 AM PDT by artemiss

Testifying before Congress in April, Supreme Court Justice Anthony Kennedy tried to explain why it's important for judges to have discretion in sentencing. He cited the case of "a young man raising marijuana in the woods. That makes him a distributor. He's got his dad's hunting rifle in the car -- he forgot about it and wanted to do target practice. That makes him armed. He's looking at 15 years. An 18-year-old doesn't know how long 15 years is."

Members of Congress apparently did not grasp Kennedy's point. The next day, almost all of them voted to impose new restrictions on sentencing discretion, making a system that Kennedy rightly called "harsh" and "in many cases unjust" even more draconian.

Under an amendment that was tacked onto a wildly popular law ostensibly aimed at preventing child abductions, judges have substantially less leeway to deviate from federal sentencing guidelines. The law makes it easier for prosecutors to challenge "downward departures" from the minimums indicated by the guidelines, instructs the U.S. Sentencing Commission to discourage such departures, and requires that Congress be kept apprised of judges who approve them.

Adding to the intimidation, Attorney General John Ashcroft recently issued a memo ordering federal prosecutors to notify the Justice Department of all downward departures not requested by the government. (Prosecutors approve a large majority of departures, often in exchange for information or testimony.) The Justice Department is expected to be much more aggressive in challenging sentences it considers too lenient, and the stricter review standard established by the new law means it is more likely to prevail.

Not surprisingly, liberal Democrats have complained about the shift in power from judges to prosecutors. Sen. Edward Kennedy, D-Mass., accused Ashcroft of continuing an "ongoing attack on judicial independence" by requiring prosecutors "to participate in the establishment of a blacklist of judges who impose lesser sentences than those recommended by the guidelines."

Rep. John Conyers, D-Mich., said: "John Ashcroft seems to think Washington, D.C., can better determine a fair sentence than a judge who heard the case or the prosecutor who tried it. The effort by DOJ to compile an 'enemies list' of judges it feels are too lenient is scary."

But familiar Ashcroft critics are not the only ones who are worried. Chief Justice William Rehnquist, who is not exactly known for soft-heartedness toward criminals, warned Congress in April that the new sentencing rules would "seriously impair the ability of the courts to impose just and responsible sentences." After the law passed, he said tracking the sentences of particular judges "could amount to an unwarranted and ill-considered effort to intimidate judges in the performance of their judicial duties."

Or consider U.S. District Judge John S. Martin, a former federal prosecutor who was appointed to the bench 13 years ago by George H.W. Bush. According to the Associated Press, "Martin has earned a reputation as a judge capable of stern sentences: In sentencing one violent gang member to life, Martin ordered the man held in solitary confinement and said he would have imposed death if he could."

In June, Martin announced that he was resigning from the bench because he could no longer participate in "a sentencing system that is unnecessarily cruel and rigid." He cited the current "effort to intimidate judges" as well as longstanding onerous punishments for drug offenders.

Judges like Martin are not simply angry over losing some of their prerogatives. "For a judge to be deprived of the ability to consider all of the factors that go into formulating a just sentence," he wrote in a New York Times op-ed piece, "is completely at odds with the sentencing philosophy that has been a hallmark of the American system of justice."

The sentencing guidelines, created under legislation that Congress passed in 1984, were supposed to prevent "unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct." But if they are not sufficiently flexible, they can also prevent warranted disparities, because it's impossible for the guidelines to take into account every factor that might help determine how much punishment a particular defendant deserves.

Unlike judges, the Sentencing Commission does not see individuals; it sees only broad classes of defendants. Members of Congress operate at an even higher level of abstraction, where no punishment is too severe because seeming tough on crime takes precedence over justice, which can only be dispensed one case at a time.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Editorial; Government; News/Current Events; Philosophy; Politics/Elections
KEYWORDS: court; courts; crime; criminal; discretion; judicial; just; kennedy; libertarians; mandatory; punishment; sentences; sentencing; sentencingguidelines; supreme
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I believe this article is sufficient to demonstrate the complete and permanent bankruptcy of the libertarian philosophy--just in case anyone had the least shred of a doubt. There is no issue which deserves a higher priority than the right to smoke and grow and sell dope.

Could this have anything to do with where the "party's" support comes from? Note: the term party is used advisedly, and has two meanings, at least.

1 posted on 08/15/2003 1:25:58 AM PDT by artemiss
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To: artemiss
Americans don't know what harsh punishment is. I still say that liberals and liberteens are only a half step apart.
2 posted on 08/15/2003 1:39:53 AM PDT by exnavy
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To: exnavy
For another example of libertarian bankruptcy, see Proof # 2 at:

http://www.freerepublic.com/focus/f-news/964485/posts
3 posted on 08/15/2003 1:47:59 AM PDT by artemiss
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To: artemiss
I will no doubt get flamed for that comment, but it's the truth.
4 posted on 08/15/2003 1:51:38 AM PDT by exnavy
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To: exnavy
Perhaps we should try the Islamic justice system.
5 posted on 08/15/2003 7:04:22 AM PDT by Barry Goldwater (Give often and generously to the Bush campaign)
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To: artemiss
Do you think the Bush daughters should have received harsher sentences?
6 posted on 08/15/2003 7:05:54 AM PDT by Barry Goldwater (Give often and generously to the Bush campaign)
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To: Barry Goldwater
Once we get judges out of the equation, we can work on eliminating juries.
7 posted on 08/15/2003 7:08:41 AM PDT by Wolfie
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To: Barry Goldwater
This is a no win situation. If you give judges the final word, sentences will not be deemed "fair"-cries of racism will follow. If Judges must follow strict sentencing guidelines-cries of racism will follow. The guidlines are unfair to minority defendents. I think some punishments are quite harsh. I know of one case where a kid got caught with a "roach" in his car. He received a sentence of five years (mandatory sentencing guidelines). On the other hand, in my neighborhood a man raped a 13 year old (he had met her on the internet) The guy went to her house and raped her. The guy got probation. This judge is known to be sympathetic to sex offenders. (no sentencing guidlines). Yet in the same state, there is an 18 year old defendent who was convicted of statuatory rape of a 15 year old, and he got 10 years (again no guidelines). What to do.....?
8 posted on 08/15/2003 7:19:32 AM PDT by nyconse
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To: artemiss
I think we are seeing just another example of gratuitous libertarian bashing.
Bizarro fetish you have; -- what is it about advocating liberty that so enrages you?
9 posted on 08/15/2003 7:20:29 AM PDT by tpaine ( I'm trying to be Mr Nice Guy, but politics keep getting in me way. ArnieRino for Governator!)
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To: exnavy; artemiss
Get a room.
10 posted on 08/15/2003 7:30:29 AM PDT by headsonpikes
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To: artemiss
I believe that the posting of this article shows the closet support for totalitarian philosophy.
11 posted on 08/15/2003 7:35:14 AM PDT by Protagoras (Putting government in charge of morality is like putting pedophiles in charge of children.)
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To: artemiss
I believe this article is sufficient to demonstrate the complete and permanent bankruptcy of the libertarian philosophy

Pretty ironic. The article make a great case as to why elements of libertarian philosophy are critical to keeping the hounds of totalitarianism at bay.

12 posted on 08/15/2003 7:44:28 AM PDT by Fzob (Why does this tag line keep showing up?)
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To: artemiss; exnavy
What does opposing sentencing guidelines have to do with libertarianism? Seems like the USA got along pretty well with out sentencing guidelines until the '80s, so unless you want to call Washington, Adams, Jefferson, Madison, Jackson, Lincoln, Grant, Teddy Roosevelt et. als. "corrupt libertines" I really don't know what the point is.

Is it really just, right and fair that we throw the book at people who get high on one substance, like pot, when his buddy will get twice as "high" (and maybe eventually kill someone in his car) on another substance (alcohol) and that's just fine and dandy--a rite of passage? Unless you favor bringing back Prohibition, drug laws should be brought into parity with our laws on alcohol. Anything else is Nazi-like insanity.

The great Americans listed above would not (and did not) stand for it. Call me an immoral libertine, then you need to call them the same.
13 posted on 08/15/2003 7:49:00 AM PDT by AnalogReigns
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To: AnalogReigns
drug laws should be brought into parity with our laws on alcohol. Anything else is Nazi-like insanity.

You assume that everyone gets high the same way. With alcohol, the depth of intoxication is proportional to amount ingested. With pot, the intoxication is often different and unpredictable for many individuals. Pot can permanently alter the personality of an individual on just one use. These are parts of the reason for labeling pot as a hallucinogen and a controlled dangerous substance.

I am glad you cited the founders as not needing this "intrusion". These were deeply religious men - Christians. While being "human" they held the belief that Rights of men as not only unalienable but also sacred. Sacred because "we are endowed by our Creator". They thoroughly recognized that tyranny and destruction can come from any angle of government. Hey wait a minute. They downgraded alcohol and tobacco to a regulated level. How dare them!

14 posted on 08/15/2003 8:36:06 AM PDT by VRW Conspirator (A constitutional republic is a vessel. If it is filled with scoundrels, the laws will reflect it.)
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To: VRW Conspirator; AnalogReigns
"drug laws should be brought into parity with our laws on alcohol. Anything else is Nazi-like insanity." --AnalogReigns--

Well said. The authoritarian 'conservatives' of FR seem to have no concept of the socalist/fascist roots of 'substance control'.
- As we see from VRW's post:

You assume that everyone gets high the same way. With alcohol, the depth of intoxication is proportional to amount ingested. With pot, the intoxication is often different and unpredictable for many individuals. Pot can permanently alter the personality of an individual on just one use.

You swallowed Big Bro's agit-prop line, -- hook & sinker..

These are parts of the reason for labeling pot as a hallucinogen and a controlled dangerous substance.

Name some others. - Two bits they're all based on an imagined 'need' for the socialistic control of society.

I am glad you cited the founders as not needing this "intrusion". These were deeply religious men - Christians. While being "human" they held the belief that Rights of men as not only unalienable but also sacred. Sacred because "we are endowed by our Creator". They thoroughly recognized that tyranny and destruction can come from any angle of government.

Yep, even from the religious 'angle'.

Hey wait a minute. They downgraded alcohol and tobacco to a regulated level. How dare them!

The ~public~ aspects of using anything can be regulated by reasonable men bounded by constitutional restraints. Try reading the document for intent.

15 posted on 08/15/2003 9:07:54 AM PDT by tpaine ( I'm trying to be Mr Nice Guy, but politics keep getting in me way. ArnieRino for Governator!)
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To: AnalogReigns
If you're trying to lump yourself in with that crew, you must think a lot of yourself.

I never did think much of people who hold themselves in high regards, oh by the way, if you researched those in your responce, you would know that you can throw Adams and Jefferson out of that group, they really don't fit. And if you don't know what I mean by that,you have spoken volumes of yourself.

16 posted on 08/15/2003 12:10:55 PM PDT by exnavy
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To: AnalogReigns
I am absolutely against legalizing or decriminalizing drugs. This is why I would never vote Libertarian. Alcohol, is not comparable to cocaine or heroine.
17 posted on 08/15/2003 2:06:01 PM PDT by nyconse
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To: exnavy
I'm not lumping myself in with those men, as in their gifts and character they are head and shoulders above you and I....however, none of those believed in the need for or even constitutional allowance of prohibition of intoxicating substances, be they halucinogenic or not.

Prohibition of alcohol from the federal government required a constitutional ammendment, rightly so--as the constitution has nothing to say about alcohol. Neither also does it have anything to say about drugs--so why isn't an ammendment required to outlaw drugs? Government authorities have just assumed those powers--the constitution be d*mned. Why are libertarians the only ones to point that out?

Why not be consistent in the desire for limited, constitutional government? Instead conservatives tend toward unconstitutional rationalisms for government power for the things important to them to control, while looking for little government in areas like commerce or religion... The same attitudes and structures that demand big intrusive government powers to regulate some private behavior can and are used to regulate commercial, family, and religious behavior--to everyone's detriment.

I don't and never have used illegal drugs...not something healthy or important to me--yet I see this as symtomatic to the assumptions American's have that government will solve personal and social problems--a role it shouldn't have, and a role the constitution doesn't give it. Churches, civic associations, and all manner of voluntary mostly local groups exist to help solve all kinds of problems--BETTER than the government ever has.

Look at AA for example--a FAR better success rate for alcaholism recovery than any government scheme--and its VOLUNTARY. Why aren't we all drunks in America? Prohibition is over, and alcahol is widely available...but voluntary solutions are working, to keep this problem under control--vs. some countries like Russia, where its estimated by responsible groups that 1 of 3 Russian men is alcoholic. Yet there, in spite of Communism's demise, they have a LONG history of government-only "solutions," which of course don't work.

You can't advocate socialistic/government solutions in one area, without logially risking socialistic/government intrusions in other areas... the elephant doesn't stay in his cage, he sits where he wants.
18 posted on 08/15/2003 2:26:09 PM PDT by AnalogReigns
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To: tpaine
The authoritarian 'conservatives' of FR seem to have no concept of the socalist/fascist roots of 'substance control'.

You like people having the ability to buy any drug when they are twenty-one years old, like morphine, cocaine, barbituits(sp) or amphetamines? Wow, your concept of addiction is naive-grossly so. Your attitude towards drug use is utopian and irresponsible. It sounds like the familiar refrain of liberals who believe that we are all basically good, so let them alone and they will usually do good. In other words, good intentions trump consequences.

The "authoritarian conservatives", just like the founders believe that all people are inherently bad (this has to do with the Christian roots). And, that people who strive to be good will do good normally, but the tendency is to do bad. Addiction can visciously turn a person, that under normal circumstaces would be good, into a thief, a liar and even a murderer. It is horribly derelect of us to deny this reality and not act upon it accordingly. That is to classify these dangerous substances and to outlaw the possession thereof. If you have a problem with the classification, OK, make your case. If you have a problem with the punishment for possesion and distribution-fine; make your case. If you even have an issue with the due process portion of this process then let us hear it. But to scrap the whole process, you are inviting the disaster of unintended consequences

You swallowed Big Bro's agit-prop line, -- hook & sinker..

I ask you to take a casual survey yourself. Find an experienced health professional who has performed emergency care or substance abuse care about the short and long term effects of substance abuse - a real world, down to earth - informational interview to. Then find a legal professional who has worked on the legal end of things with addicts and ask them what the skinny is. One thin is for sure, when you come away from these interviews, you will have definite ammunition. You are in for a big-ham surprise if you do or you will refrain because you are afraid of the truth if you do not. Go ahead-make my day.

Last note: The ancient root word for "hashish" and the word "assasin" are the same. There is a reason for that. next time

19 posted on 08/15/2003 3:00:55 PM PDT by VRW Conspirator (A constitutional republic is a vessel. If it is filled with scoundrels, the laws will reflect it.)
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To: VRW Conspirator
It sounds like the familiar refrain of liberals who believe that we are all basically good, so let them alone and they will usually do good.

Where oh where did you find these 'liberals'? Leave people alone? Liberals??? Never!

Liberals are the utmost advocates of paternalistic, nannying, big government intrusiveness. They don't want you to smoke, drink, etc... They want helmet laws, seatbelt laws, now they even want food laws.

The very essence of socialism is that people cannot care for themselves, and individuals owe others something, and must give up their rights and income for 'the greater good'. There is no 'leave people alone' in that equation.

20 posted on 08/15/2003 3:10:16 PM PDT by freeeee
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