NO RUBBER-STAMP

Chief Justice Rehnquist Again Sounds An Alarm Against A Law That Puts
Independence And Integrity Of Judges In Jeopardy

Chief Justice William H. Rehnquist was not sure Congress and Attorney
General John Ashcroft heard him and the Judicial Conference of the
United States the first time. It has been a little more than three
months since the Rehnquist-led conference of federal judges voted
unanimously to support repeal of a law promoted by Attorney General
John Ashcroft that meddles dangerously with the independence of the
judges.

In his annual report on the federal judiciary, Rehnquist speaks up
even louder against the Feeney Amendment, whose purpose is to give
special scrutiny to and intimidate judges who give sentences that fall
short of federal sentencing guidelines.

In contrast to rubber-stamp justice, judges at times, in circumstances
peculiar to individual cases, sentence defendants to shorter terms
than minimums set forth in the federal guidelines.

Rehnquist was especially irked last September, when the
Ashcroft-supported law got enacted without any real evaluation by the
Judicial Conference . The amendment attracted little original notice,
in fact, when it got attached to the popular Amber Alert child
protection measure.

Lest there be any mistaking how he still feels about the Ashcroft
power play, the chief justice's report says the Feeney Amendment
"could appear to be an unwarranted and ill-considered effort to
intimidate individual judges in the performance of their judicial duties."

Could there be any real doubt about that? First, the amendment adopted
last April made it easier for appellate courts to lengthen sentences
shorter than in the guidelines. Second, the law put judges on notice
they not only would be challenged on such sentences but also reported
to Congress for handing them out. And the role of the U.S. Sentencing
Commission has been all but usurped in the process.

Yet, the Feeney Amendment alone didn't satisfy Ashcroft's taste for
applying the hammer to the non-cookie cutter federal judges.

In a late-summer directive to federal prosecutors, the attorney
general directed them to report judges who make "downward departures"
from the guidelines when reductions aren't tied to a defendant's
cooperation in a case. Ashcroft also urged the attorneys to appeal
such sentences in larger numbers. It was hardly a happy development
for the appellate courts or for the federal prisons that have had a
four-fold increase in population since 1987 -- more than half
representing drug offenders.

Most federal judges apparently agree that a range of possible
punishments in federal guidelines has been helpful in reducing glaring
disparities in sentencing. But they rightly resent a heavy-handed
effort to drive them away from just, responsible sentencing and toward
an inflexibility that is onerous to fair-minded people.

The Rehnquist rebuke is a needed reminder to Congress and the Justice
Department that in this instance they have gone much too far.