Could something good finally come from the brutal, racially charged, videotaped beating of Rodney King that shocked the nation five years ago?

That depends on whether the Supreme Court seizes the opportunity, in two cases that the King beating spawned, to restore some humanity and balance to the federal criminal sentencing process.

The Court could do this by making it clear that in cases like these, which involve extraordinary mitigating circumstances, federal district judges have enough leeway to show convicted defendants some mercy, and to treat them as individuals-rather than as numbers to be crunched through the arcane formulas of the Federal Sentencing Guidelines.

The irony is that the defendants appealing for mercy in the cases at hand are Stacey Koon and Laurence Powell, the two former Los Angeles cops who were convicted by a federal jury of violating King’s civil rights. The Court heard arguments in the cases, Koon v. United States and Powell v. United States, on Feb. 20.

Koon and Powell were released from federal confinement last December after serving the 30-month terms (minus time off for good behavior) ordered by U.S. District Judge John Davies. But the U.S. Court of Appeals for the 9th Circuit held that Judge Davies had let the two off far too easily when he granted them "downward departures" that spared them more than half of the 70 to 87 months of imprisonment suggested by the sentencing guidelines. Unless they win their Supreme Court appeals, the ex-cops will apparently have to go back to prison for three more years.

A ruling in favor of Koon and Powell would understandably offend many people who were horrified by the King beating. But in the long run, it would be a good thing for the thousands of more conventional (and disproportionately black) future defendants who-while convicted of crimes-may not deserve the full prison terms that they would get through mechanistic application of me guidelines.

That’s why these cases have made some strange bedfellows, with the National Association of Criminal Defense Lawyers and two police groups supporting Koon and Powell in amicus briefs. And that’s why Koon and Powell should win at least a partial victory in their appeal to the Supreme Court.

Under the unusual circumstances of the case, the more than two years that they have already served-together with the other consequences they have suffered-seems like punishment enough. More important, by upholding a substantial downward departure in this case, the Supreme Court could make it clear that the sentencing guidelines are not a straitjacket, that district judges have substantial discretion to depart from the guideline formulas in appropriate cases, and that fact-specific sentencing decisions should not lightly be second-guessed by appellate courts.

Typical of the rigid approach that many appellate courts have taken is the 9th Circuit’s reversal of Judge Davies on his primary basis for departing from the guideline sentence. That was the fact that the muscular, 225-pound King had initially provoked the police by his lawless and threatening behavior.

King had been driving drunk at speeds up to 100 miles per hour, had led police on an eight-mile chase through city streets; had ignored orders to step out of his car after being stopped; and had thrown off four officers who tried to pin him down, shrugged off two taser darts, charged at Powell in an effort to escape, and ignored orders to lie prone. All this made it clear that the early stages of the beating had been a lawful and proper effort to subdue and search a dangerous lawbreaker.

Judge Davies upheld the jury’s verdict of conviction on the ground that Powell had violated King’s civil rights by continuing to beat his prostrate form for some 19 seconds after he had been subdued, and that Koon, as the commanding officer at the scene, had done nothing to stop Powell.

But Davies also held that these crimes were mitigated-albeit not excused-by King’s provocative misconduct. Davies ordered a downward departure of five "offense levels" (about 29 months) on this score, citing a provision in the guidelines that explicitly encourages downward departures "[i]f the victim’s wrongful conduct contributed significantly to provoking the offense behavior."

That provision fit the case like a glove. But the 9th Circuit held otherwise. It adopted the Justice Department’s unpersuasive contention that this sort of provocative misconduct is typical in police brutality cases, and thus cannot justify any downward departure when police are convicted of using excessive force after having subdued the victim.

In so arguing, the 9th Circuit and the Justice Department come close to espousing the absurd proposition that Koon and Powell must be sentenced as severely as though the whole beating had grown out of behavior on King’s part no more provocative than, say, an illegal U-turn, followed by a polite surrender to police. This defies common sense and justice. The brutalizing of Rodney King-as deplorable as it was-would never have occurred but for King’s lawless conduct. And the distinction between provoked and unprovoked police brutality should be reflected in setting the punishment.

Judge Davies’ bases for granting Koon and Powell a second, three-level departure were more debatable. He cited "a convergence of three additional factors": (1) the punishment already suffered by Koon and Powell in terms of losing their jobs and careers in law enforcement, and the notoriety that would make them "unusually susceptible to prison abuse"; (2) the absence of any risk that they would commit crimes in the future; and (3) the "specter of unfairness" associated with the successive federal prosecution of Koon and Powell after their acquittals (by the much-maligned Simi Valley jury) on state law charges based on the same underlying conduct.

In rejecting each of these grounds for departure, the 9th Circuit asserted (among other things) that it is not unusual for people to lose their jobs after being convicted of felonies, or to be at risk of abuse by fellow prisoners; that the guidelines expressly bar downward departures based on lack of future dangerousness; and that courts cannot second-guess the attorney general’s determination that a successive federal prosecution was warranted.

These points are plausible to varying degrees. But Judge Davies was nonetheless persuasive in holding that the whole is greater than the sum of the parts, and that the cumulative impact on Koon and Powell of all aspects of this unique case-which might never have been brought but for the pressures symbolized by the bloody Los Angeles riot-has been so punitive as to warrant an offsetting reduction in their prison terms.

Any doubt as to whether Davies or the 9th Circuit has the better of the argument should be resolved in light of the long-standing tradition-which the guidelines regime was designed to modify, not discard-of appellate deference to trial court sentencing decisions involving mixed questions of law and fact.

As Professor Daniel Freed of Yale Law School wrote in an impressive 1992 critique of the federal sentencing regime, "Appeals court judges …no longer look defendants in the eye, study presentence reports, or struggle with assessing whether an offender is beginning or ending a criminal career, appears to be dangerous or harmless, is a minnow in a sea of big fish, or has gone astray under unusually stressful circumstances and will not offend again."

The Justice Department claims that departures from guideline sentences must be severely limited to avoid the kinds of unwarranted sentencing disparities that the guidelines were designed to prevent. But as Freed and others have demonstrated, overly rigid guidelines may actually cause new disparities by shifting discretion from judges to prosecutors and spurring various forms of evasion. And as Professor Albert Alschuler of the University of Chicago Law School wrote in a 1991 article, "[S]ome things are worse than sentencing disparity, and we have found them."

Consider the published reflections of Judge José Cabranes of the 2nd Circuit on the guidelines regime, with its 258-box "Sentencing Table" grid and its 700 dense pages of commentary:

Judges, prosecutors, defense attorneys, and probation officers … are being forced to operate under a byzantine system of rules devised by an administrative agency in Washington-rules that generally ignore individual characteristics of defendants and sacrifice comprehensibility and common sense on the altar of pseudoscientific uniformity…. Rather than relying on jurists to exercise wisdom and judgment, we now merely ask them to perform an automaton’s function by applying stark formulae set by a central power.

The Supreme Court can only do so much to improve this situation. It cannot junk the sentencing guidelines. But it can spur lower courts to interpret them more flexibly and sensibly. The Koon and Powell cases would be a good place to start.