A HEALTHY DEBATE

Attorney General John Ashcroft probably didn't do it to promote debate and
discussion. But in directing U.S. attorneys last week nationwide to start
reporting on federal judges who impose lighter sentences than called for in
federal sentencing guidelines, Mr. Ashcroft might have precipitated a national
discussion on prison sentences and especially on "mandatory minimum" sentences
for certain offenses.

Such a discussion is long overdue.

Mr. Ashcroft's order does not threaten judicial independence directly, although
it does include a directive to make sure the government is prepared to appeal
more light sentences, and to centralize such decisions in "main Justice" in
Washington. But it is a blatant attempt to intimidate federal judges into
imposing heavier sentences even when such sentences offend their sense of
justice or their knowledge of mitigating facts.

Thus does a politician reputed to have been a conservative suspicious of
overweening federal power become an enthusiastic advocate of beefing up
centralized power - once the power is in his hands. No wonder our founders
tried to create a government of checks and balances.

Supreme Court Justice Anthony Kennedy's recent speech to the American Bar
Association urging ABA members to repeal federal mandatory minimum sentences
and "let judges be judges" was probably not a direct response to Mr. Ashcroft's
directive. In fact, it reflects longstanding frustration within the federal
judiciary.

Last month, Judge Myron Bright of the 8th District Court of Appeals wrote that
recent legislation affecting sentencing guidelines makes an already difficult
situation worse. Chief Justice William Rehnquist has also said that
centralizing information on sentencing practices "could amount to an
unwarranted and ill-considered effort to intimidate individual judges."

Any debate over mandatory minimums and sentencing guidelines should take into
account that the federal impulse to stiffen sentences is in part an artifact of
the war on drugs. Congress began enacting the guidelines in the 1980s in an
effort to use even stiffer punishment to solve the drug problem. Let the
discussion begin.