Last August, in To hell with Congress, say federal judges, I posed the question "Should Congress or judges have the final say on criminal punishment?" and answered my own question:

I find it very hard to understand how anyone can take that question seriously. Judges are justice specialists who hear the details of each case, while legislators are distant political beings, trying to impose generalized rules on judges. Mandatory minimums are an absurd presumption on the part of legislators. Congress may be within their rights in doing so, but that does not make it wise or just.

With two cases, Booker and Fanfan, the Supreme Court, in a 5-4 split, has just thrown federal court sentencing into a tizzy, and tossed the ball back into Congress. They ruled that sentencing guidelines violate the U.S. Constitution to the extent that they require a judge to impose a sentence using facts beyond those admitted by the defendant or found by a jury beyond a reasonable doubt. In short, the sentencing guidelines are to be treated as advisory rather than mandatory, which returns some sentencing control to the judge.

These decisions tip the balance in the struggle federal judges have faced in being forced, by legislation, to ignore specific facts of a case, and give sentences they believed were unjust and even unconstitutional. Many judges have spoken out on the issue, including Supreme Court Justice Kennedy. Some judges have resigned their positions, refusing to issue sentences that didn't match the severity of the crimes.

Originally, sentencing guidelines were carefully prepared by professionals in an attempt to equalize penalties across the nation, but Congress, in a typical boondoggle attempt at one-size-fits-all force, made the guidelines into rigid, mandatory dictates. The Attorney General scrutinized and even threatened federal judges who deviated downward from the guidelines. Sentences often included long penalties for acts that weren't even part of the charges, such as the Angelos case where the defendant was sentenced to life without parole, with most of that sentence attributed to gun possession charges that were not even prosecuted.

These decisions will certainly affect cases in progress, and may generate many suits in the name of people already adversely sentenced and in prison. Among the organizations that have been working hard to get relief from draconian sentencing legislation is FAMM, Families Against Mandatory Minimums. I've worked with the local chapter since its inception, and listened to the tragic stories of family members whose loved ones have been convicted and harshly sentenced.

Justice Breyer's opinion cites FAMM's amicus brief for the principle that punishment should return to the concept, embodied in law by Congress, that a sentence must be "sufficient, but not greater than necessary" to comply with the purposes of sentencing.

Although these rulings concerning sentencing guidelines will help in the fight for just sentencing, they do not restrain the mandatory minimum sentencing laws. Here is a brief explanation from FAMM of how those two systems interact:

Mandatory minimum sentencing laws and sentencing guidelines are both ways to limit judicial discretion, but the guidelines are clearly preferable. Unlike blunt mandatory minimums, which take account of only the quantity of drugs sold, guidelines permit a judge to consider many relevant facts. Also, the mandatory minimums are "one-size-fits-all, "while the guidelines allow for upward or downward departures in unusual cases. Unfortunately, the mandatory sentencing laws supersede or "trump" the sentencing guidelines. At sentencing, judges must determine if the defendant was convicted of a quantity of drugs that triggers a mandatory minimum penalty and if so, impose that sentence regardless of the sentencing guidelines.

It must be noted here that the root cause of the injustices in sentencing is the maddening and failed federal War on Drugs that has filled our prisons with non-violent drug offenders with long sentences, resulting in the early release of violent criminals, increasing the danger to all of us.

That is the real problem to be solved.