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STEVE INSKEEP, HOST:

Winners of this fall's elections may have a chance in time to weigh in on one of the biggest questions in the criminal justice system. It's the question of who has the power to determine the sentence of a convict.

RENEE MONTAGNE, HOST:

Every year, federal judges sentence more than 80,000 people. Those punishments are supposed to be fair and predictable.

INSKEEP: Many years ago, Congress passed sentencing guidelines for judges. Then the U.S. Supreme Court gave more freedom back to judges, saying the guidelines are only suggestions.

MONTAGNE: Now, Republicans in Congress are criticizing the results. They want tough, new, mandatory prison terms. NPR's Carrie Johnson reports.

CARRIE JOHNSON, BYLINE: More than 25 years ago, during the height of the war on drugs, Congress passed a major sentencing overhaul, creating a panel of judges and lawyers to develop mandatory guidelines for how to punish criminals. But a Supreme Court decision in 2005 made those guidelines only advisory. And to some Republicans on Capitol Hill, that means criminals are now punished more based on the luck of the draw. James Sensenbrenner, a Republican from Wisconsin, put it this way at a recent hearing.

REP. JAMES SENSENBRENNER: A criminal committing a federal crime should receive similar punishment regardless of whether the crime was committed in Richmond, Virginia, or Richmond, California. And that's why I am deeply concerned about what's happening to federal sentencing.

JOHNSON: Since the Supreme Court acted, Sensenbrenner says, judges in places like New York City have imposed sentences below the guideline ranges almost half the time. But judges only a few hours north of New York are still following the guidelines. Former prosecutor and GOP congressional aide Matt Miner says that's not justice.

MATT MINER: We have a federal system. There should be consistency not just in the same courthouse and on the same floor, or district by district; but across the country. And we're failing in that.

DOUGLAS BERMAN: The way you make sure the guidelines get due respect is to make them respectable.

JOHNSON: That's Doug Berman, a law professor at Ohio State University. A lot of people argue ever since the Supreme Court weighed in, black men have it a lot worse. Judge Patti Saris, of Massachusetts, leads the congressionally created U.S. Sentencing Commission. Here she is, speaking at a panel sponsored by the American Constitution Society in Washington earlier this month.

PATTI SARIS: The average sentence for a black male was 20 percent longer than that for a white male. What's important to add there is no one here is accusing judges of being racist.

JOHNSON: So then what's going on?

SARIS: It's not that the black male sentences are going up; it's that white male sentences are going down.

JOHNSON: Berman, the law professor, says judges think many of the suggested punishments are too tough, especially in the areas of corporate fraud and child pornography, where the guidelines call for people who download images of children to sometimes get upwards of 20 years behind bars.

BERMAN: There's 2,000 child porn cases, and about 1,200 of them have below-guideline sentences - and they're all white defendants. I think the easiest explanation for that entire 20 percent - or if not the entire 20 percent, at least a big part of that is, in fact, white, child-porn downloaders are getting significant leniency.

JOHNSON: The sentencing commission studies that feedback, Judge Saris says, and it really tries to make things better. For example, next month the panel will hold a hearing on whether child porn sentences are fair.

SARIS: Congress, it thinks about the world's worst offender when they're setting up mandatory minimums. They're thinking about the big, bad guy that we'd all agree, gee, just send that person away. But there are often - for every horrible, horrible you can tell me about, I can think of a situation which is far less severe.

JOHNSON: Despite all the criticism, the great majority of judges still give out punishments within the range of the old guidelines, even though they're no longer mandatory. Amy Baron-Evans works for the Federal Public Defenders.

AMY BARON-EVANS: I would urge the commission to maybe sell Congress on the idea that this system is working pretty well.

JOHNSON: But that message can politically unpopular, with some Republicans suggesting they might propose new mandatory sentences, and cut the budget of the sentencing commission. Former prosecutor Bill Otis is in that camp.

BILL OTIS: The commission should either return to its main job - creating mandatory guidelines - or give the taxpayers a refund.

JOHNSON: The House Judiciary Committee is planning more hearings on the issue this spring.

Carrie Johnson, NPR News, Washington.

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