Under Ashcroft, Justice Is Blind and Handcuffed

In matters of faith and law, Atty. Gen. John Ashcroft generally distrusts the role of discretion -- it is uniformity, if not rigidity, that defines his vision. Over the last two years, Ashcroft has radically reshaped the Justice Department, pushing aside suspected moderates and promoting young extremists who will not hesitate in carrying out his orders. He now has turned to the federal courts to compel uniformity, ordering prosecutors, in a July 28 memo, to report any judge who imposes a criminal sentence lighter than what is called for by federal guidelines.

Ashcroft is seeking to prevent judges from tailoring sentences to fit individual crimes. If successful, sentences in the United States would be meted out with all the speed and care involved in calculating a mortgage rate on the Internet. Judges are resisting this robotic approach to sentencing and are fighting to preserve a tradition of judicial discretion that runs to the early days of our country. In a system without such discretion, pleas for mercy or extenuating circumstances would be considered immaterial to justice.

At issue are 1984 guidelines that established a set of mandatory minimum sentences for federal crimes. Both conservative and liberal judges have long denounced these guidelines as imposing unduly long sentences and reducing the ability of courts to fashion punishments that fit particular cases. The sentences are so severe that some judges have resigned rather than impose a 10-year mandatory minimum prison term for first-time drug offenders. Most judges have struggled to work within the guidelines to fashion more just sentences.

For instance, a federal judge may use a "downward departure" from the rules to reduce a sentence if there are mitigating factors, such as cooperation with the government. Such reductions in sentences, which are used in 35% of cases annually, are often supported by prosecutors. According to the American Bar Assn., prosecutors have appealed only 19 of more than 11,000 such sentence reductions. Likewise, some of the nation's most conservative jurists have opposed restrictions on the authority of judges to "depart." Chief Justice William Rehnquist, for example, warned Congress that restrictions "would seriously impair the ability of courts to impose just and reasonable sentences."