NO ROOM FOR JUDGEMENT

In a speech before the American Bar Association in August, U.S. Supreme
Court Justice Anthony Kennedy decried current federal sentencing practices
as too harsh. "Our resources are misspent, our punishments too severe, our
sentences too long," he said. "The federal sentencing guidelines should be
revised downward."

But Kennedy, a Reagan appointee, was spitting in the wind. The Bush
administration and the Republican-controlled Congress have been moving
things in precisely the opposite direction, stiffening penalties for federal
offenses and making it more difficult for judges to offer any leniency.
Attorney General John Ashcroft, with the help of Congress, has been on a
crusade to eliminate independent judicial judgment on sentencing. The names
of judges who have the temerity to depart downward from the federal
sentencing guidelines wind up on a Justice Department watch list.

Now comes the Drug Sentencing Reform Act soon to be introduced by Rep. Mark
Souder, R-Indiana. It would further strip away judicial discretion in
sentencing, transforming the role of federal judges into that of little more
than a calculator.

The bill would constrain judges from considering the unique factors
surrounding each case, such as a defendant's background and other
mitigations, when sentencing drug offenses. It is an expansion of the
so-called "Feeney" amendment passed earlier this year, in which such
considerations were limited in sex offenses.

The bill would direct the U.S. Sentencing Commission to make it clear that
judges are not to consider a defendant's education, employment record or
family ties, among other factors, in sentencing for drug crimes. Contrary to
the American legal tradition, it essentially says: no compassion or
tailoring of sentences to fit the individual circumstances of the crime
allowed.

In a nasty provision directed toward women in the drug trade who are coerced
to participate by abusive boyfriends, Souder's bill would instruct the
Sentencing Commission to eliminate the potential for a lesser sentence in
these types of cases. If these women made any kind of profit from the drug
sales, the fact that they were forced into it by their partners would make
no difference.

The bill would also mandate random drug testing for every federal
probationer, even if the underlying offense were not a drug crime - an
incredible waste of money. And it would enhance penalties for growing or
selling "high potency" marijuana, defined as having a THC level of over 6
percent. This is another federal attempt to shut down medical marijuana
cultivation in the states where it has been legalized. AIDS, cancer and
other patients who use marijuana as medicine tend to utilize the higher
potency varieties in order to relieve their suffering with a minimum of
smoking.

Giving judges the ability to bring their judgment and sensibilities to bear
on individual cases is a hallmark of our legal system. Souder's legislation
would undermine this authority and hand significantly more power to the
Justice Department. Once judges are denied any flexibility in sentencing,
the entire case is driven by the way the prosecutor charges. The bill's
passage would be another win for Ashcroft and another big loss for justice.