SENTENCING MODIFICATION GAINS SOME UNLIKELY ALLIES

A senior federal judge had this to say recently about criminal justice in
America: "Our resources are misspent, our punishments too severe, our
sentences too long."

The problem, he added, is a system of sentencing guidelines and mandatory
criminal penalties enacted by Congress that simply does not work to reduce
crime or protect citizens. "In too many cases, mandatory minimum sentences
are unwise or unjust," the jurist explained.

These are not the words of some bleeding-heart liberal. In fact, they were
spoken by Justice Anthony Kennedy, a reliably conservative voice on the
Supreme Court who was appointed by Ronald Reagan.

What makes Justice Kennedy's argument so striking is that it directly
contradicts the current policies of the Bush administration and its leading
voice on criminal justice issues, Attorney General John Ashcroft. Ashcroft
is determined to do exactly the opposite of what Kennedy recommends by
increasing penalties.

Last spring, at Ashcroft's prodding, Congress passed a law urging a
crackdown on judges who regularly issue sentences that are more lenient than
the federal guidelines. Ashcroft then followed up a few weeks ago by
directing the federal court administrator to start keeping records detailing
the performance of these judges.

This campaign represents a triumph of rigid ideology over practical reality.
Many judges and prosecutors side with Justice Kennedy in this dispute. But
in the current climate, it is impossible for Congress to stand up to
Ashcroft and risk being branded soft on crime.

In the mid-1980s, Congress first enacted federal sentencing guidelines.
Since then, the federal prison population has increased almost fivefold, and
the total number of prisoners in all jurisdictions now tops 2 million. To
put this figure into perspective, one out of every 143 Americans is in jail
compared to 1 out of every 1,000 citizens in European countries like England
and Italy.

But that is not enough for Ashcroft. He's still furious that in nearly 35
percent of all federal criminal cases last year, the sentences fell below
official guidelines. In Ashcroft's world, mercy borders on the immoral.

Since federal judges are appointed for life, Ashcroft can't remove any of
his targets. But he can make their lives miserable. This very point was made
by Chief Justice William Rehnquist, hardly a criminal-coddler, who warned
that the attorney general's campaign "could amount to an unwarranted and
ill-considered effort to intimidate individual judges."

It would be one thing if longer sentences and less judicial discretion
actually reduced crime. But in the view of Ashcroft's critics, the very
opposite is true.

Listen to Judge John S. Martin Jr., appointed to the federal bench by the
first President Bush, who has denounced the current sentencing system as
"unnecessarily cruel and rigid." On National Public Radio, Judge Martin
maintained that in many cases, "we're warehousing people who are dangerous
to no one."

A smarter idea, he says, is using the money now spent on imprisoning
nonviolent criminals to bolster police patrols and expand drug
rehabilitation programs.

Justice Kennedy concedes that some prisoners are incorrigible criminals.
However, he adds: "We must try to bridge the gap between proper skepticism
about rehabilitation on one hand and improper refusal to acknowledge that
the more than 2 million inmates in the United States are human beings whose
minds and spirits we must try to reach."

That's not a popular message today. The "lock 'em up and throw away the key"
crowd is riding high in Washington. But conservative jurists like Kennedy,
Rehnquist and Martin think there's a better way to make our streets safer,
and they deserve to be heard.

Cokie Roberts and Steven V. Roberts are syndicated columnists.