'A BLACKLIST OF JUDGES'

Attorney General John Ashcroft Seeks To Further Broaden His Department's
Power By Scrutinizing Judges Who Hand Down Lighter Sentences Than Federal
Guidelines Recommend.

Under John Ashcroft, the Justice Department is all about expanding and
consolidating power. The attorney general won passage of the USA Patriot
Act, giving his department substantial new power to conduct searches with
little or no judicial oversight; he has undermined the authority of states
to legalize medical marijuana and doctor-assisted suicide; and he has taken
discretion away from local prosecutors to determine whether to seek the
death penalty. Ashcroft's latest move is to direct U.S. attorneys to report
federal judges who hand down sentences that are lighter than those
recommended by federal guidelines. This is Ashcroft's way of trying to
intimidate judges who believe there is room for compassion and
proportionality in our legal system.

In an internal memorandum sent to federal prosecutors on July 28, Ashcroft
says department attorneys have an "affirmative obligation" to oppose
sentences when judges depart from federal sentencing guidelines. The
department defends this as an attempt to ensure uniformity - as a way to
prevent two defendants charged with the same crime from receiving disparate
sentences. But in truth this is just another attempt to undermine the
independence of the judiciary.

"A blacklist of judges," is how U.S. Sen. Edward Kennedy, D-Mass., aptly
characterized the directive in the New York Times. If judges know a lenient
sentence will result in their names being added to a list of judges
Congress might want to scrutinize, they may simply put their better
judgment aside and conform to the guidelines.

Ashcroft's memorandum is in response to the Feeney amendment, a measure
introduced by U.S. Rep. Tom Feeney, R-Oviedo, Florida's former House
speaker, who was known for his fractious and vindictive relations with the
state judiciary. The amendment includes a number of provisions to limit the
discretion of federal judges, including one that enhances the ability of
federal appeals courts to set aside lenient sentences. According to Feeney,
the amendment was written by officials in the Justice Department. It was
signed into law in April as part of a broader measure.

All this fuss over sentencing would suggest there is an epidemic of
leniency. This is simply not true. While departures from the federal
guidelines have been slowly increasing, about half have been granted at the
request of prosecutors. In fiscal year 2001, only 50 incidents of downward
departures were appealed nationally, indicating that local federal
prosecutors have not regarded leniency as much of a problem.

Ashcroft's move comes at a time when a growing number of voices within the
system, including U.S. Supreme Court Justice Anthony Kennedy, say federal
sentences are simply too harsh. In a recent speech before the American Bar
Association, Kennedy urged that group to lobby Congress for the repeal of
mandatory minimums.

"Our resources are misspent, our punishments too severe, our sentences too
long," said Kennedy, a Reagan appointee who often votes with the court's
conservative justices. "I can accept neither the necessity nor the wisdom
of federal mandatory minimum sentences. In all too many cases, mandatory
minimum sentences are unjust."

Unlike the Justice Department under Attorney General Janet Reno, who
decentralized authority and encouraged independence among local
prosecutors, Ashcroft wants all power to flow to and from him. He
apparently trusts neither federal judges nor his own prosecutors in the
field. The Feeney amendment gives Ashcroft another weapon for his assault
on an independent judiciary.

One of the most important questions in next year's election is whether
President Bush, if re-elected, plans to keep John Ashcroft around for four
more years.