Jail time by the book: is justice served when local judges have little discretion?

SYLVIA Foster could have been Exhibit A to U.S. Supreme Court Justice Anthony M. Kennedy s urgent plea about mandatory sentences. "Our resources are misspent, our punishments too severe, our sentences too long," he told the American Bar Association.

At 34 and with no previous record, Foster was sentenced to 24 years in prison because for six months her boyfriend cooked and kept crack in her home in Gainesville, Fla. She threw him out as soon as she learned what he was up to, she testified, to the jury's disbelief.

Is her sentence an argument for reining in federal judges' leeway in sending criminals to prison? Quite the opposite. The judge gave Foster exactly what he said federal sentencing rules require.

Hardly anyone who can do something about Draconian federal sentencing is listening to Kennedy, the sentencing specialists, or judges who are on the verge of revolt because they feel forced to hand out prison terms far longer than is just.

Instead of easing up, Attorney General John Ashcroft and Congress keep trying to tighten the handcuffs on judges. Rep. Tom Feeney, a Florida Republican, persuaded the House to pass a measure written by Justice Department lawyers to squeeze out almost all that's left of judges' authority to assign a sentence to fit the circumstances. Feeney's amendment passed with no hearings, no warning.

An ensuing uproar persuaded a House-Senate conference to remove the most restrictive parts of the Feeney amendment before President Bush signed it into law in April. But it still requires judges viewed as too soft to be reported to Congress and instructs the U.S. Sentencing Commission to limit judges' leeway in granting even the slightest leniency.

Congress stripped federal judges of much of their discretion when it passed the Sentencing Reform Act of 1984 and created the Sentencing Commission. The seven-member, bipartisan group of judges and lawyers sets ranges of prison terms for each federal crime. They allow specific adjustments for factors like a greater or lesser role in the crime, the amount of contraband involved, and the degree to which the defendant takes responsibility for the crime.

That may sound like built-in flexibility, but the categories are simply too few and too narrow to cover all the ways crimes and criminals can be different.

And so, in unusual circumstances, judges may depart from the prescribed sentence, upward or downward, for other listed factors or even for reasons not named in the guidelines. While sentences outside the guideline ranges are allowed, they are discouraged. The Justice Department is worried because the number of downward departures has been heading upward.

What's more, there's disparity from one place to the next. Federal trial judges in Manhattan gave sentences lower than the guideline range 12 percent of the time in 2001, compared with 28 percent for the judges in Brooklyn, according to the commission's numbers. Those numbers didn't include sentences lowered to reward the defendant's cooperation with prosecutors.

In South Carolina, federal judges gave lower sentences only 2 percent of the time, while in Southern California the number was 50 percent, according to those same figures.

The Justice Department wants to make sure "someone convicted in California does not have a more lenient sentence than someone convicted of the stone federal crime in Texas," says department spokesman Mark Corallo.

The problem with these numbers is that information on thousands of cases is missing, says the commission, and some of the differences are understandable. For example, the Justice Department encourages lower sentences for some immigrants to speed up deportation, so border areas have greater downward departure rates.

In some districts that seem to stick closely to the sentencing guidelines, judges and lawyers have figured out how to give lower prison terms without going outside the federal rules, says James Felman, a Tampa defense lawyer who advises the commission.

Even so, these dubious numbers are driving the effort to further limit judicial authority and keep sentences long. Too long, in Kennedy's view. "The Federal Sentencing Guidelines should be revised downward," he told the ABA.

No one seems to be listening to the judges. U.S. District Judge John Martin in Manhattan announced he's leaving the bench because of the sentencing straitjacket. And a senior federal appeals court judge, Myron Bright of the St. Louis-based 8th Circuit, wrote in an opinion last month that the Feeney amendment will make "it even more difficult for district judges to On do justice under the law."

As for Foster, she recently got out of prison six years after conviction, no thanks to the sentencing law. Her conviction was set aside because her trial lawyer also represented a surprise prosecution witness, so she'd been denied an aggressive cross-examination of that important witness. She pleaded guilty to a lesser charge and is now free, says her appellate lawyer, Stephen Byers of Washington.

Still, Foster's original sentence underscores a point Felman made to the sentencing commission. The problem is not how to get cases treated alike. "What's hard," he told the commission, "is to make sure different cases are treated differently."

Ann Woolner is a columnist with Bloomberg News.