PRESERVING SOME JUDGMENT FOR JUDGES

Attorney General John Ashcroft has asked to be notified whenever judges
issue sentences lower than the prescribed federal guidelines. Kind of
strips the meaning from the word "guidelines," doesn't it?

Ashcroft claims the move will ensure fairness and consistency among federal
judges in different areas. However, it is telling that he requested only
the names of judges who rule below the guidelines and not judges who exceed
them. The reason can only be to exert greater pressure on those judges not
toeing the Justice Department's line.

The blacklist is part of a running battle over who determines the proper
punishment for a convicted criminal: the courts, which try the case, the
executive branch, which regulates the courts, or the Congress, which
legislates the sentencing guidelines.

Lawmakers historically suggested maximum and minimum penalties, then
trusted those hearing the evidence to use their judgment to weigh
individual circumstances. In the 1980s, Congress took away much of that
latitude, creating a Sentencing Commission to set detailed guidelines,
ostensibly to mitigate the effects of personalities or bias in the
courtroom. However, judges could depart from the guidelines if they could
justify a lower sentence.

In 1996, the Supreme Court reaffirmed trust in judicial decision-making,
framing the issue as one of individual rights. Justice Anthony Kennedy
wrote that the "federal judicial tradition (is) for the sentencing judge to
consider every convicted person as an individual and every case as a unique
study in the human failings that sometimes mitigate, sometimes magnify, the
crime and punishment." In other words, one-size-fits-all sentencing ignores
every case's unique circumstances, and treating everyone the same isn't the
same as treating them all fairly.

What's more, prosecutors who disagreed with a federal judge's sentence
could appeal. So Ashcroft's leniency list would cure a complaint that
already has a remedy. And that remedy appears pretty effective. Only about
a third of sentences are lower than the prescribed guidelines, and of
those, half result from a prosecutor's request. So, fewer than 1 in 5 cases
would even merit an appeal, much less pressure from Washington.
Prosecutors' prerogative to appeal would be usurped as well.

Courts should not work like vend-o-mats, simply spitting out scripted
sentences to assembly lines of convicts. Instead, an individual's case
should be judged on its merits and punished accordingly. That's why even
the federal Sentencing Commission has come out against the list, pending
its study of the issue. A bill in Congress would keep Ashcroft at bay until
that study is completed. It deserves passage before the undermining of
judges can begin.