ASHCROFT'S LIST

Some federal judges, even conservatives, decry excessive prison sentences.
So why is the attorney general cracking the whip?

He's making a list, checking it twice, gonna find out who's naughty or
nice. No, it's not Santa Claus but U.S. Attorney General John Ashcroft who
intends to take careful note of the conduct of federal judges in sentencing
defendants. Ashcroft has directed federal prosecutors to report judges who
make "downward departures" from federal sentencing guidelines when the
reductions are not tied to a defendant's cooperation on the case. The memo
also instructs prosecutors to start appealing the guideline-departing
sentences in larger numbers, which could hardly be worse news for federal
appellate courts. Ashcroft's potential blacklist extends a power grab. It
poses a threat to responsible sentencing and to the federal judiciary's
independence as well.

The Justice Department's grab began when it championed a legislative
amendment, which Congress adopted in April, that makes it easier for
appeals courts to lengthen sentences that are shorter than in federal
guidelines. The Feeney amendment, as The Wall Street Journal reported, put
judges on notice that they not only would be challenged on such sentences
but also reported to Congress for handing them out. Further, notes Indiana
University law professor Frank Bowman, Feeney has essentially yanked the
teeth of the U.S. Sentencing Commission.

Chief Justice William Rehnquist is another one who weighed in. Here is a
conservative Republican appointee, hardly soft on crime, who warned that
the Feeney amendment would "seriously impair the ability of the courts to
impose just and responsible...sentences." Indeed, judges' independence is
under threat from both the Justice Department and the House Judiciary
Committee, which would pump even more muscle into the sentencing guidelines.

Speaking last week to the American Bar Association, Supreme Court Justice
Anthony Kennedy, a Reagan appointee, added to criticism he had voiced in
April about the practice of setting mandatory minimum sentences for some
federal crimes. Although Kennedy did not address Ashcroft's recent
directive specifically, he told the ABA, "Our resources are misspent, our
punishments too severe, our sentences too long.... In all too many cases,
mandatory minimum sentences are unjust."

Kennedy's views are not those of a jurist who thinks there's no need for
federal sentencing guidelines. Over the past 15 years there has been some
merit in providing judges a range of possible punishments for most cases,
thereby removing some of the disparities in terms different judges impose
for the same crime.

But Kennedy, like so many other judges, is hardly unaware of the four-fold
increase in the population of the federal prisons since 1987 -- more than
half of it representing drug offenders. Prison terms have become
considerably longer than before the guidelines system was adopted.

As Kennedy suggests, the guidelines -- mandatory minimums in particular --
should be revised downward. But Ashcroft and the Justice Department team he
has built are intent on guidelines stricter than those many federal judges
already view as onerous. Surely U.S. District Judge John S. Martin Jr. of
Manhattan, who resigned his seat in June, expressed the feelings of many of
his colleagues when he spoke of increasingly limited discretion in sentencing.

"The Justice Department," said Martin, "is telling us that every defendant
should be treated in the same way, that there should be no flexibility to
deal with individuals." And the best name for that, perhaps, is the John
Ashcroft way.