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Let Judges Be Judges

August 18, 2003

Federal sentencing laws, especially for drug possession, are often irrational, unfair and rigid, and judges know it. However, Atty. Gen. John Ashcroft thinks the problem is that too many federal judges are falling for the sob stories criminals tell them and cutting them a break on prison time.

In a July 28 memo, Ashcroft directed all U.S. attorneys to notify him whenever a federal judge imposed a criminal sentence that was less than U.S. guidelines called for. The attorney general says he wants the case numbers and judges' names so his prosecutors can appeal these sentences. But Supreme Court Chief Justice William H. Rehnquist, Justice Anthony Kennedy and dozens of outraged federal judges regard this order as an attack on judicial independence and a veiled threat to would-be nominees.

In the mid-1980s, Congress set mandatory minimum sentences for many drug crimes to ensure that a judge's philosophy or a defendant's background wouldn't influence the sentence. Judges of all political stripes slam these laws as grotesquely harsh.

One example: Defendants convicted of possessing 50 grams of crack cocaine -- about the weight of a snack-size bag of pretzels -- must serve 10 years. It takes 10 times as much powder cocaine to justify that sentence. The long sentence applies to first-time offenders and drug kingpins alike. Close to half of the 10,000 people imprisoned for cocaine possession in 2001 had no criminal record or little history of crime.

These mandatory-minimum laws virtually eliminate the discretion that judges consider essential to their job. It's that skill of weighing the crime while gauging the defendant's chance for rehabilitation that separates judges from a clerk who would calculate prison sentences by using a spreadsheet. Some judges have resigned in protest rather than enforce what they see as overly harsh laws, and others, including U.S. District Judge Terry J. Hatter Jr. in Los Angeles, have threatened to do so.

In 1996, the U.S. Supreme Court expanded the limited ability Congress left judges to set shorter terms. About one-third of the felons sentenced since then received less than the minimum term, but in half of those cases prosecutors asked for the reduction to get defendants' cooperation.

The attorney general doesn't like those numbers and obviously wants judges to toe his automaton line, without regard to the Constitution's balance of powers. Congress should instead, as Kennedy has proposed, do away with these unworkable sentencing laws and let justice work in tandem with common sense.

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