Jacob Sullum

Testifying before Congress in April, Supreme Court Justice Anthony Kennedy tried to explain why it's important for judges to have discretion in sentencing. He cited the case of "a young man raising marijuana in the woods. That makes him a distributor. He's got his dad's hunting rifle in the car -- he forgot about it and wanted to do target practice. That makes him armed. He's looking at 15 years. An 18-year-old doesn't know how long 15 years is."

Members of Congress apparently did not grasp Kennedy's point. The next day, almost all of them voted to impose new restrictions on sentencing discretion, making a system that Kennedy rightly called "harsh" and "in many cases unjust" even more draconian.

Under an amendment that was tacked onto a wildly popular law ostensibly aimed at preventing child abductions, judges have substantially less leeway to deviate from federal sentencing guidelines. The law makes it easier for prosecutors to challenge "downward departures" from the minimums indicated by the guidelines, instructs the U.S. Sentencing Commission to discourage such departures, and requires that Congress be kept apprised of judges who approve them.

Adding to the intimidation, Attorney General John Ashcroft recently issued a memo ordering federal prosecutors to notify the Justice Department of all downward departures not requested by the government. (Prosecutors approve a large majority of departures, often in exchange for information or testimony.) The Justice Department is expected to be much more aggressive in challenging sentences it considers too lenient, and the stricter review standard established by the new law means it is more likely to prevail.

Not surprisingly, liberal Democrats have complained about the shift in power from judges to prosecutors. Sen. Edward Kennedy, D-Mass., accused Ashcroft of continuing an "ongoing attack on judicial independence" by requiring prosecutors "to participate in the establishment of a blacklist of judges who impose lesser sentences than those recommended by the guidelines."

Rep. John Conyers, D-Mich., said: "John Ashcroft seems to think Washington, D.C., can better determine a fair sentence than a judge who heard the case or the prosecutor who tried it. The effort by DOJ to compile an 'enemies list' of judges it feels are too lenient is scary."

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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