STEALING JUDGES' POWER

Chief Justice William H. Rehnquist is no bleeding heart. He's often tougher
on suspects and convicted felons than his other tough-on-crime Supreme
Court colleagues. But Rehnquist thinks Congress went too far last year by
tightening already harsh federal minimum sentencing guidelines and
threatening intimidation of judges who depart from them.

The chief justice is particularly incensed over amendments to the Protect
Act, which Congress passed last year. The law is a mouthful -- the 2003
Prosecutorial Remedies and Other Tools to End the Exploitation of Children
Today Act. Silly acronym aside, the Protect Act cuts further into judges'
little remaining discretion to determine a fair and just sentence.

The law, which President Bush signed in April, directs the U.S. Sentencing
Commission to further narrow the circumstances under which federal judges
may show leniency toward criminals at sentencing. Congress created the
commission in 1984 to reduce what it saw as unwarranted disparities in
judges' sentences for similar crimes. Yet the sentencing guidelines and
mandatory minimum terms that Congress and the commission have drafted make
judges into clerks who look up the offense, plug in data on the
circumstances of the crime -- such as whether the defendant used a gun or
had prior convictions -- and then calculate the time to be spent in prison.
The essence of a judge's skill -- his or her seasoned gut feeling about the
defendant's sense of remorse or prospects for rehabilitation -- plays no
part in this process.

Over the years, anti-crime politics have pushed guidelines toward tougher
sentences. Now, a growing number of judges across the political spectrum
are pushing back. In his annual state of the federal judiciary report
released Jan. 1, Rehnquist slammed Congress for the Protect Act's "dramatic
changes," which eliminated some of the few remaining technical grounds
allowing a judge to reduce a sentence below ranges in the guidelines. He
expressed anger as well at provisions that allow the attorney general or
congressional committees to order reports on the sentencing records of
specific judges. Rehnquist declared this an "unwarranted and ill-considered
effort to intimidate individual judges."

The sentencing guidelines have long undermined judges' unique expertise.
Now they threaten judicial independence as well, raising the prospect that
jurists who don't always abide by minimum sentences, even for the most
rational reasons, could be hauled before a congressional star chamber to
account for their actions.

Congress should give Rehnquist's objections their due and repeal the poorly
named Protect Act amendments.