JOHN ASHCROFT'S BLACK-ROBED BLACKLIST

The U.S. attorney general's thinly veiled pressure on judges to deliver
harsher sentences threatens their ability to ensure fairness and act as a
check on other branches of government.

JOE McCARTHY used a blacklist to intimidate and punish Americans with
certain political beliefs. U.S. Attorney General John Ashcroft appears to
be using a similar tactic with federal judges whose sentences fail to meet
his ultraconservative standards.

Prosecutors nationwide have been ordered to collect information on judges
who sometimes "depart downward" from mandatory sentencing guidelines set by
Congress, and to report that information to Washington. Ashcroft's
ostensible purpose is to enforce consistency in sentencing, but it smells
more like an attempt to pressure jurists who occasionally reject Ashcroft's
harsh brand of justice.

If he successfully bends judges to his will, Ashcroft will strike blows
against fairness, common sense and the role of the independent judiciary in
America's constitutional system of checks and balances.

Judges already are limited in their sentencing discretion, thanks to
Congress' creation of the U.S. Sentencing Commission in the 1980s. They may
depart from its guidelines, but only if they can supply justification.
Their decisions remain subject to appeal.

But such nuanced balance is apparently too much for Ashcroft, who would
draw the reins even tighter. If jurists succumb to his pressure, they will
surrender their ability to make prescribed punishments - best described as
blunt instruments - fit the crimes. Legislators are incapable of crafting
measures fully appropriate to all situations. Only the discretion of judges
ensures fairness, for as Judge James C. Turk of the 4th Circuit Court of
Appeals for the Western District of Virginia put it, "There are no two
crimes exactly alike, and no two people exactly alike."

The discretionary power in question, however, would not vanish. Rather, it
would shift to prosecutors, who operate under increasingly tight control
from Ashcroft and whose enhanced power over sentencing would place them in
an even stronger negotiating position with plaintiffs.

Overall, though, the greatest danger may lie in dilution of the judiciary's
independence. Even tough-on-crime William Rehnquist, chief justice of the
U.S. Supreme Court, says Ashcroft's tactic "could amount to an unwarranted
and ill-considered effort to intimidate individual judges." If Ashcroft
succeeds, judges will sacrifice some of their constitutional role as a
check upon legislative and administrative excesses.

In the present system of mandatory sentences, judges stand alone as voices
of fairness and moderation. Ashcroft should heed critics such as Turk and
abandon his efforts to tie their hands.