Opinion Tuesday, March 18, 1997

More jailed in U.S. than anywhere
by:Robert Reno, columnist with Newsday, Distributed by the LA
TimesWashington Post News Service

As Hong Kong approaches its final separation from what's left of the
British Empire, there is considerable concern over whether the local
population will continue to enjoy the political rights recently granted,
but denied them by its British administrators throughout most of its
existence as a crown colony ruled from London.
More critical to the confidence of the international business
community, and to Hong Kong's future as a safe place for capital, is
whether the Hong Kong judiciary will maintain its traditional
independence. Capitalism can flourish under a dictatorship but it does
feel reassured by a judicial system that guarantees a semblance of
fairness when businessmen go to sue each other or seek to protect their
property rights.
But if we want to see a judiciary whose independence is under attack,
we don't need to go as far as Hong Kong. The U.S. court system is under
fire from critics at times no less subtle or restrained in their
rhetoric than the Chinese commissars who are about to become lords of
Hong Kong.
First, Congress and many of the state Legislatures got the bright
idea of mandatory sentences, which greatly restrict judges' powers to decide
appropriate punishment for a given defendant. Then the tort reformers
pressed the idea that the courts should be stripped of much of their
power to adjudicate cases where people have suffered grave personal
injury or other losses.

Now the judgebashing is taking on an even more punitive tone. Pat
Buchanan ranted this week that the judiciary has become "the ruling
branch of government" and proposed that the U.S. Supreme Court be
stripped of appellate review jurisdiction by "a determined Congress that
has the inherent power to stuff the court back into the box the framers
intended." And Republicans in the House of Representatives, which has
heretofore sat back while the Senate exercised power to confirm
presidential judicial appointments, want a bigger piece of the
judgebashing action. Rep. Tom Delay, RTexas, the majority whip, this
week proposed impeaching judges who displease conservatives by their
rulings.
"We are going after judges," he declared, which I guess is the sort of
Texas talk they use when they're going out in their pickup to plug some
coyotes.

Orrin Hatch, chairman of the Senate Judiciary Committee, favors a more
genteel brand of judgebashing. He merely says that the backlog of
people nominated by President Clinton to fill some of the 90 vacancies
in federal district courts will be subject to a more rigorous screening,
presumably for any hint of liberalism, for the slightest suggestion of
an overdeveloped affection for the Fourth Amendment or the rights of the
accused, and for even the remotest disposition to overturn some of the
more hysterical excesses of the legislative branch.
Since the Republicans had 12 years from 1981 through 1992 to pack the
judiciary with dependable Neanderthals, it's hard to see what they are
so apoplectic about. As for "soft" judges, there were only 196,000
Americans in prison in 1970. Today, there are well over 1 million. The
mystery is how they got there and how the United States now has a
greater percentage of its population incarcerated than any civilized
nation, than even China.