GOVERNMENT MOVES TO DICTATE SENTENCES BY FEDERAL JUDGES ARE A BLATANT ABUSE
OF POWER

The independence of the federal judiciary is under a concerted attack by
both other branches of the federal government, in defense of bankrupt
sentencing policies.

The most recent volley was fired by Attorney General John Ashcroft, in a
memo telling federal prosecutors to notify Washington whenever a federal
judge issues a sentence that falls below the guidelines for the offense in
question.

Guidelines were developed in the 1980s by the United States Sentencing
Commission, ostensibly to bring greater uniformity to sentences, though
many proponents simply wanted longer sentences.

Judges can give a defendant less time, but they have to justify it in writing.

"The public in general and crime victims in particular rightly expect that
the penalties established by law for specific crimes will be sought and
imposed by those who serve in the criminal justice system," Ashcroft said
in a July 28 memo outlining the policy.

The Sentencing Commission says that in 2001, federal judges issued
sentences below guidelines in 35 percent of the 54,851 cases examined.
Most, however, were the product of plea agreements giving a defendant less
prison time in return for cooperation with prosecutors, and only 19 were
appealed.

That's right: appealed. The Justice Department already has the right to
appeal a sentence below the guidelines, a right that is exercised when
prosecutors feel it is warranted.

That shows that the Ashcroft memo is designed not to inform prosecutors of
policies, but to gather information that can be used to intimidate judges.

And Ashcroft is not the only one attacking the judiciary. Last spring, the
House Judiciary Committee threatened to subpoena records of all
drug-related cases handled since 1999 by a federal judge in Minnesota who
has been sharply critical of sentencing guidelines. And a new federal law
provides for the collection of sentencing data on a judge-by-judge basis.

A good argument can be made that the guidelines law is unconstitutional.
What right does Congress or an administration have to tell judges they must
justify a sentence in writing?

Leaving that issue aside, however, the Ashcroft memo is a blatant attempt
to dictate sentences by federal judges.

The United States already is in danger of becoming a nation of convicts due
to the irrational policy of filling prisons with nonviolent drug offenders.
More than two million people are incarcerated and the population is rising
rapidly. The last thing we need is more long sentences.

Supreme Court Justice Anthony Kennedy recently spoke out against guidelines.

"Our resources are misspent, our punishments too severe, our sentences too
long," Kennedy said in a speech in San Francisco. "In too many cases,
mandatory minimum sentences are unwise or unjust."

Even Chief Justice William Rehnquist, who is just about as attuned with
administration and congressional thinking as any judge, sees the danger.

In reaction to the law on sentencing data, Rehnquist said this "could
amount to an unwarranted and ill-considered effort to intimidate individual
judges in the performance of their judicial duties."

The independence of the judiciary is no small matter.

Without it, all the freedoms enumerated in the Bill of Rights mean nothing.
It must be defended.