AFRAID OF MERCY

If John Ashcroft is going to act like judge, jury and executioner, then it
might be time for William Rehnquist and Anthony Kennedy to act a little
more like politicians.

Attorney General Ashcroft, who has milked post-9-11 security fears for all
they are worth, is on the lookout for federal judges who are squishy when
it comes to handing down the sentences the Justice Department wants. He has
instructed U.S. attorneys across the country to keep a watch list of judges
who depart from federal sentencing guidelines.

That directive, combined with the attorney general's previous actions to
take away from local prosecutors their traditional authority to decide when
to plea bargain and when to seek the death penalty, is a disturbing
centralization of power by a supposedly conservative, small-government
administration.

The federal government, and many states, instituted sentencing guidelines
in response to documented concerns that the severity of punishment for the
same crime varied wildly from judge to judge, or from race to race. But
most such laws correctly allow judges to order more lenient sentences, or
harsher ones, upon a written finding outlining the reasons why the imposed
sentence more closely approximates justice than the recommended one.

No one is arguing that dangerous criminals should not be dealt with,
sometimes severely. But the move against judicial independence not only
removes an important safeguard against political prosecutions, it also
ignores the common-sense view that sentences should be determined by the
judges who have heard all the evidence, read all the motions and had the
opportunity to take the measure of the accused.

Other laws allow judges even less independence. These federal
mandatory-minimum sentences, usually for drug crimes, have offended Chief
Justice Rehnquist and Justice Kennedy, among other jurists, because they
not only take away judges' independence but also fill prisons and ruin
lives at great cost to society.

These justices have upheld state laws that allow particularly harsh
sentences, most notably the so-called three-strikes-you're-out laws that
impose life sentences on repeat, petty offenders. But, as Kennedy has since
pointed out, just because a law does not offend the Constitution does not
mean it fails to offend common sense or decency.

Kennedy, a Reagan appointee, said at the recent American Bar Association
convention, "A people confident in its laws and institutions should not be
afraid of mercy."

But the United States, Kennedy notes, has the world's highest percentage of
citizens behind bars, has forgotten about the redemptive power of the
executive pardon and has a system that puts the need to punish ahead of any
real search for justice.

Kennedy and Rehnquist are believers in judicial restraint. They have to be
pushed a long way before they will speak out in public as they have.
Ashcroft has pushed them that far. They are right to push back.