Editorial supporting more sentencing discretion for federal judges

Perhaps sensing that it is possible (but I think unlikely) that SCOTUS decides Claiborne and Rita today, the Des Moines Register has this new editorial entitled “Let federal judges use judgment in sentencing.”  The editorial complains about the Eighth Circuit’s reversal last week of a below-guideline sentence in US v. Pepper (discussed here).  Here is the heart of the editorial:

This [Pepper] case illustrates the problem with federal sentencing rules.  Besides shackling judges from tailoring sentences to individual offenders, they tend to produce vastly longer prison sentences.  And, by relying heavily on recommendations from prosecutors, the rules give more discretion to U.S. attorneys than judges.

The Supreme Court, in striking down the sentencing rules in 2005, said mandatory sentencing rules violate a defendant’s Sixth Amendment right to trial by jury because the sentence formula uses information gathered after the trial, not on facts presented to the jury.  Since then, however, federal appeals courts — including the 8th Circuit, which has jurisdiction over Iowa — have still enforced the old guidelines as if they were mandatory.