August 18, 2003

Federal sentencing laws, especially for drug possession, are often irrational, unfair and rigid, and judges know it. However, Atty. Gen. John Ashcroft thinks the problem is that too many federal judges are falling for the sob stories criminals tell them and cutting them a break on prison time.

In a July 28 memo, Ashcroft directed all U.S. attorneys to notify him whenever a federal judge imposed a criminal sentence that was less than U.S. guidelines called for. The attorney general says he wants the case numbers and judges' names so his prosecutors can appeal these sentences. But Supreme Court Chief Justice William H. Rehnquist, Justice Anthony Kennedy and dozens of outraged federal judges regard this order as an attack on judicial independence and a veiled threat to would-be nominees.

…In 1996, the U.S. Supreme Court expanded the limited ability Congress left judges to set shorter terms. About one-third of the felons sentenced since then received less than the minimum term, but in half of those cases prosecutors asked for the reduction to get defendants' cooperation.

The attorney general doesn't like those numbers and obviously wants judges to toe his automaton line, without regard to the Constitution's balance of powers. Congress should instead, as Kennedy has proposed, do away with these unworkable sentencing laws and let justice work in tandem with common sense.