MR. ASHCROFT'S BLACKLIST

ATTORNEY GENERAL John D. Ashcroft is making a list and checking it twice.
He's going to find all the federal judges who've been naughty or nice.

In a July 28 order, Mr. Ashcroft required federal prosecutors to report
cases where judges handed down lenient sentences. He said he was compiling
the list in the interest of national uniformity in sentencing. But federal
judges may be excused for fearing they'll end up with a lump of coal.
Appearing to coddle criminals isn't a ticket to a higher court appointment.

Mr. Ashcroft's order is part of a concerted effort in Congress and the
Justice Department to pressure judges to adhere to rigid sentencing
guidelines. An amendment to the "Amber alert" law passed last spring
restricted the ability of judges to impose sentences more lenient than
those recommended in the guidelines. The House Judiciary Committee
threatened to subpoena the records of U.S. District Judge James Rosenbaum
of Minneapolis, a critic of the sentencing guidelines. That was a
heavy-handed threat to judicial independence.

Sen. Edward M. Kennedy, D-Mass., called the Ashcroft list a "blacklist."
Some conservatives, including U.S. Supreme Court Chief Justice William H.
Rehnquist, have also voiced concerns about attempts to intimidate federal
judges. The chief justice said that gathering information about sentencing
"could amount to an unwarranted and ill-considered effort to intimidate
individual judges. . . ."

The law setting up mandatory minimum sentences was a compromise between
unlikely bedfellows, Mr. Kennedy and the late Sen. Strom Thurmond, R-S.C.
The idea was to achieve greater equality and truth in sentencing, but the
result was a grid of more than 200 boxes giving the range of sentences for
each crime. The guidelines have come under increasing criticism for
resulting in overly long sentences for drug crimes. Last weekend, Justice
Anthony M. Kennedy said the system should be scrapped because the sentences
are too long and prison costs too high.

In 1996, the Supreme Court strengthened the authority of judges to depart
downward from the guidelines. It upheld a judge's decision to impose
30-month sentences on the police officers who beat Rodney King, instead of
the 70 months the guidelines would have required. Since then, more judges
have departed downward from the guidelines, until now about a third of
federal sentences are below the minimum.

The Justice Department appealed only 19 of the more than 11,000 downward
departures during fiscal 2001. Mr. Ashcroft's memo suggests that will be
changing. But the biggest impact could be in the unseen decisions of
federal prosecutors and judges to avoid the appearance of coddling criminals.

Mr. Ashcroft has a track record from his days in the Senate of taking out
after judges he perceives as "pro-criminal." His new memo suggests he still
does not appreciate the vital role that independent judges play in a system
where the courts may check the government's abuse of power.