LAW AND JUDICIAL DISORDER

You'd think that being reamed out even once by the Chief Justice of the
United States would be enough to get anyone's attention, but William
Rehnquist has now let Congress have it twice and most members still aren't
paying attention.

Rehnquist recently unloaded on Congress in his annual report on the judiciary.

. It seems," he wrote, "that the traditional interchange between the
Congress and the Judiciary broke down when Congress enacted what is known
as the Protect Act, making some rather dramatic changes to the laws
governing the federal sentencing process."

Those changes, the chief justice charged, "could appear to be an
unwarranted and ill-considered effort to intimidate individual judges in
the performance of their judicial duties."

"Could appear to be" is hardly it. Intimidation is exactly what Congress,
in eager cahoots with Attorney General John Ashcroft, intended.

Congress last year further reduced the already limited discretion of
federal judges in sentencing criminals and required reports to Congress on
judges who veer from the sentencing guidelines. And to make it clear that
he means to hammer judges with the new law, Ashcroft ordered U.S. attorneys
to keep tabs on jurists whose sentences fall short of the guidelines and
report them to the Justice Department.

In one of those law-and-order blood lusts that often strike legislators,
Congress rushed on beyond just establishing a national Amber Alert system
to rescue kidnapped children, the original and unexceptionable purpose of
the the legislation, and added the hysterical judge-bashing amendment
pushed by Rep. Tom Feeney, R-Fla.

Hysterical, because the amendment was a knee-jerk response to faddish
alarms about supposedly short sentences - and never mind that many of those
sentences were plea-bargained as a way to speed up the deportation of
illegal aliens. What's the point of first charging taxpayers to keep such
defendants in prison for years before throwing them out of the country?

As with the unwise mandatory sentencing laws, three-strikes laws even for
minor crimes and absurdly long sentences for nonviolent drug offenses,
lawmakers, in effect, once again not only prejudge cases they know nothing
about but prejudge cases for crimes that haven't even been committed yet.

It is not as though this country is exactly soft on crime, demagogic claims
to the contrary notwithstanding. Our incarceration rates are five to eight
times higher than those of other industrialized nations and we typically
imprison offenders far longer than other nations do for the same offenses.

This is, for once, not a purely partisan stand-off.

The very conservative Rehnquist was followed in his original beef last year
by fellow justices Anthony Kennedy and Stephen Breyer, one each
conservative and liberal. The law is opposed by the American Bar
Association, the Judicial Conference of the United States and other legal
bodies.

And legislation to quash the Feeney amendment has been proposed by Sen.
Edward Kennedy, D-Mass. Rehnquist and Kennedy are the two poles of the
spectrum of political sanity. It ought to say something to Congress and to
the White House and its attorney general that on this matter, they fall
outside both.