Acting Solicitor General Paul Clement speaks of "carnage and wreckage" in the federal criminal-sentencing system. Supreme Court Justice Stephen Breyer worries that his colleagues may be destroying the "noble objective" of ending unjust disparities in the sentencing of similar defendants for similar misconduct. Law professor Frank Bowman accuses the Supreme Court of creating "a ghastly mess, bringing the federal criminal-justice system to a virtual halt and putting a number of state systems in disarray."

Clement’s and Breyer’s laments came during oral arguments on October 4 in two new cases before the high court that show every sign of being the wrecking balls that will destroy the federal sentencing guidelines that have been in effect for 17 years. The crane operators for this destruction will be the ideologically eclectic group of five justices that in June, by a 5-4 decision, struck down Washington state’s similar sentencing system in a case called Blakely v. Washington. Barring a late conversion, the majority seems bent on destroying a critical pillar of the federal edifice, possibly as soon as November.

Almost lost in the teeth-gnashing is that the federal sentencing system has been an engine of gross injustice for a long time, thanks mainly to multiple, destructive interventions by Congress and the Justice Department. To wit:

• Tens of thousands of nonviolent first offenders are serving savagely severe prison terms of five, 10, even 20 years, mostly for drug crimes.

• Many far more dangerous criminals get off far more easily.

• Unjust disparities remain commonplace, with some defendants serving prison terms several times as long as co-defendants convicted of similar crimes.

• Black and Hispanic defendants get the harshest treatment, in hugely disproportionate numbers, mainly because of the especially outlandish crack-cocaine penalties.

• Sentencing power has been shifted from neutral judges to prosecutors, whose choice of what charges to bring largely dictates the sentences of defendants who are convicted.

• The federal prison population has soared more than sixfold since 1980, to more than 150,000 inmates, of whom two-thirds are black or Hispanic and more than half are nonviolent and drug offenders. In all, more than 2 million people are incarcerated in the United States, up from 500,000 in 1980.

But the Supreme Court has so far suggested no remedy for the federal sentencing system’s metastasizing cancer: the excessive mandatory-minimum sentences enacted by Congress, and other legislative efforts meant to hogtie judges. Instead, the Blakely majority’s big swing is aimed at a pimple on the nose of the system: the assignment to judges, rather than juries, of the power to decide that any aggravating fact can be used to increase a defendant’s sentence above the maximum ordinarily specified by the sentencing guidelines. (For example, a defendant convicted by a jury of selling cocaine gets more time than the ordinary guideline range allows if the judge finds that he was also carrying a gun.)

And in its zeal to broaden defendants’ jury-trial rights, the majority seems likely to provoke Congress into making the system even worse, especially for the very defendants it says it wants to protect.

Congress has been doing just that ever since a coalition of liberals and conservatives adopted the nobly intentioned Sentencing Reform Act of 1984. The act was designed to curb the almost limitless discretion long enjoyed by judges to impose wildly disparate penalties for similar crimes, a system that left defendants’ fate largely to the luck of the draw.

The 1984 law created the seven-member U.S. Sentencing Commission to draft detailed rules ("guidelines" is a misnomer) setting a sentencing range for every federal crime, based in part on the judge’s own findings of aggravating or mitigating facts. The guidelines took effect in 1987. No longer would soft judges be free to coddle serious criminals, or hanging judges be free to hammer far less dangerous offenders. At least, that was the theory.

But almost from the start, Congress has repeatedly frustrated the 1984 law’s objectives while skewing the system toward mindless severity. It has adopted a raft of mandatory-minimum sentences far higher than the penalties that the expert Sentencing Commission had (or would have) specified, especially in drug and gun cases. It has also micromanaged the commission, rebuffed its recommendations, and curbed what was left of judges’ discretion to reduce sentences based on mitigating factors. Most recently came last year’s so-called PROTECT Act, propelled by the lobbying of Attorney General John Ashcroft’s Justice Department.

These destructive laws reflect the congressional temptation to pander to voters by using rhetoric about violent criminals and drug kingpins to push through long mandatory sentences whose actual impact would horrify many of the same voters: The sentences destroy the lives of nonviolent, non-dangerous, flesh-and-blood defendants who might end up as productive citizens if given a brief prison term and a new chance in life.

Meanwhile, the Sentencing Commission, with Congress breathing down its neck, has made its own guidelines so rigid, detailed, and complex that judges find themselves computing prison terms by arcane formulas that often offend their own sense of justice. The result, says Ron Weich, former counsel to the Sentencing Commission, is that "the federal sentencing system is worse today than it was in 1984. The guidelines alone could have made things much better, but Congress never let the commission do its job."

Ashcroft and some others credit tougher sentences with the drop in crime rates since 1980. But comparisons over time and among states undermine this thesis and show that the prison binge has gone far beyond serving any reasonable crime-fighting purpose. Indeed, most conservative, tough-on-crime judges, prosecutors, and scholars, as well as liberals, see the mandatory minimums as mindlessly harsh toward nonviolent bit players in drug deals and to many other defendants.

Amid such glaring injustices, hardly anybody saw the residual power of judges to increase guideline sentences as a big problem until four years ago. That was when the Supreme Court handed down a potentially revolutionary decision called Apprendi v. New Jersey in which the Court invalidated the Garden State’s hate crime statute because it allowed judges to increase a sentence if they (rather than juries) found that a crime was indeed motivated by racial or other bias. The Court extended Apprendi this June by declaring in Blakely that any fact that increases the upper limit on a judge’s sentencing discretion must be proved to a jury beyond a reasonable doubt. Although Blakely involved a state statutory maximum, its broad language also seems applicable to the federal sentencing guidelines.

What would or should be left of the sentencing guidelines if the Court continues in this vein in the two new cases is much in dispute. But given the messiness of all possible approaches, nobody doubts that Congress would subsequently intervene. And the easiest way for Congress to avoid constitutional problems would be to return to the pre-1984 days when maximum sentences were so high that judges could add as much prison time as they (rather than juries) wanted for almost any reason they chose. Congress would also probably keep adding mandatory minimums to preclude judicial leniency no matter how strong the mitigating facts.

The mystery is why the five justices in the Apprendi and Blakely majorities would want to bring about something like that. Why would liberals John Paul Stevens, Ruth Bader Ginsburg, and David Souter, as well as conservatives Antonin Scalia and Clarence Thomas, set in motion a demolition — in the name of protecting defendants — that seems destined to bring still more-excessive prison terms while destroying any hope of consistency in treatment of similar defendants?

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Clarification: My criticism of professor Cass Sunstein in a September 25 column — for having "got religion" by harshly criticizing the Supreme Court’s Bush v. Gore decision a few weeks after his far less critical initial comments — was based on a misinterpretation, according to Sunstein. Although he has always seen the decision as being both helpful in stabilizing a chaotic situation and flawed by very bad legal reasoning, he says, he has never considered it "illegitimate, undemocratic, and unprincipled." I quoted those words from a short Sunstein article on how future historians would see Bush v. Gore. But he says this article was "not an expression of my own views" and "obviously whimsical." That is not obvious to me from the article itself. But now that I know Sunstein’s intended meaning, I withdraw my criticism.