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Published: Wednesday, 8/20/2003

An independent judiciary

In a fresh effort to clamp down on an independent judiciary, the U.S. Justice Department has ordered the compilation of data on federal judges who give out lighter sentences than those set forth by federal guidelines.

It will mean more paperwork for federal prosecutors. They will have to notify the home office each time a sentence falls short. Attorney General John Ashcroft will decide if an appeal is in order. It's probably a safe assumption that some judges will be spotlighted more than others in this new exercise in political control.

This Justice Department policy overrides another option: sending reports of out-of-guideline sentencing to Congress.

Even though federal judges in 2001 handed out sentences below guidelines in 35 percent of 58,851 cases, more than half were the result of plea agreements in which prosecutors necessarily concur. Only a fraction was appealed.

And from the looks of it, given the dearth of staff in the Justice Department itself, and its overriding focus on terrorism, few appeals are likely to be filed. An added fillip is that Supreme Court Justice Anthony M. Kennedy has called mandatory sentences too often “unwise or unjust” and has said he favors scrapping them.

The fact of the matter is that guidelines ought to be just that - suggested parameters. Judges need the flexibility that circumstances dictate.

The Founding Fathers had ultimate faith in an independent judiciary. The courts are not about satisfying feelings of revenge but in assuring justice to both victims and defendants. This means that a judge must weigh all the circumstances in each case and not treat justice as a baker, armed with a cookie cutter, treats dough. Mr. Ashcroft knows that.

“A people confident in its laws and institutions should not be ashamed of mercy,” Justice Kennedy said, noting that 2.1 million Americans are behind bars nationwide.

Mr. Ashcroft's new turn of the screw can only be construed as a fresh attempt to achieve executive primacy over both the judiciary and the Congress. It exemplifies in the starkest possible terms why Mr. Ashcroft's term of office is at the President's pleasure and why federal judges are appointed for life.

Lawmakers and judges are right to be troubled by this fresh effort to strong-arm the justice system and, seemingly, to keep the Congress, which set the guidelines, out of the immediate loop. The Ashcroft ploy stacks up as another of his dangerous efforts to tinker with the Constitution. For the sake of the nation this particular plan ought to be dumped.

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