LET JUDGES JUDGE

The incarceration rate in the U.S. is now 702 per 100,000, the highest rate
in U.S. history and the highest rate in the world (it is five to eight
times the rate of similar industrialized nations). A black male has a 29
percent chance of winding up in state or federal prison at some point. And
at vast expense, many of these prisoners are held for violations of various
drug laws whose utility to America is at best questionable. We think that
many of these people should be in the health-care system, not in jail.

Lower on the list of concerns would be that certain federal judges were
giving out lighter punishments than those suggested in federal sentencing
guidelines. Yet it is just this concern that is the focus of a recent
Justice Department memo in which U.S. Atty. Gen. John Ashcroft asks to be
alerted whenever a federal judge makes a "downward departure" from a
federal sentencing guideline. Mr. Ashcroft said he had a "solemn obligation
to ensure that laws concerning criminal sentencing are faithfully, fairly
and consistently enforced." Who could disagree?

No, it's the attorney general's desire to micromanage a range of hundreds
of thousands of individual cases that is troubling.

The directive accorded with a little-publicized provision in an April bill
that created the national "Amber Alert" network to respond to child
abductions. The provision, sponsored by Tom Feeney (R.-Fla.) at the bequest
of the Department of Justice, was designed to make it tougher for federal
judges to deviate from federal sentencing guidelines.

In 2001, federal judges handed out lower sentences than the guidelines
suggested in 35 percent of the 54,851 cases handled.

Mr. Ashcroft's memo is troubling because it means that instead of coming up
with creative solutions to sky-high incarceration rates, the Justice
Department is instead trying to micromanage federal justices, almost always
without much knowledge of individual cases.

As Supreme Court Justice Anthony Kennedy (a conservative Republican by
background) put it in his remarks to the American Bar Association, "Our
resources are misspent, our punishments too severe, our sentences too long.
I can accept neither the necessity nor the wisdom of federal mandatory
minimum sentences. In too many cases, mandatory minimum sentences are
unwise or unjust."

Over the last two "tough-on-crime" decades, the number of U.S. prisoners
has nearly quintupled, from about 300,000 in 1993 to almost 1.4 million
today. One study says that 88 percent of the increase in prison population
between 1980 and 1996 was because of sentencing changes.

When Washington bureaucrats start dictating to judges how to do their jobs
from afar, it undermines the idea of having judges at all. After all,
common sense would say that judges, with their training and their knowledge
of specific cases -- the evidence, extentuating circumstances, characters
involved -- should be empowered to use their judgment.

"They're [the Justice Department] taking a very mechanistic approach to the
whole process," argues John S. Martin, a U.S. district judge in Manhattan
who announced his retirement in June partly because of fears that the
judiciary's independence was being threatened. Also disturbing is that, in
the words of Sen. Edward Kennedy (D.-Mass.), the Ashcroft memo requires
prosecutors "to participate in the establishment of a blacklist of judges"
- -- not a good move for those who understand the importance in a democracy
of an independent judiciary.

Micromanaging judges to enact stiffer penalties in unlikely to make America
safer. It will only increase the number of prisoners at the expense of
taxpayers while reducing the independence of the judiciary.