But familiar Ashcroft critics are not the only ones who are worried. Chief Justice William Rehnquist, who is not exactly known for soft-heartedness toward criminals, warned Congress in April that the new sentencing rules would "seriously impair the ability of the courts to impose just and responsible sentences." After the law passed, he said tracking the sentences of particular judges "could amount to an unwarranted and ill-considered effort to intimidate judges in the performance of their judicial duties."

Or consider U.S. District Judge John S. Martin, a former federal prosecutor who was appointed to the bench 13 years ago by George H.W. Bush. According to the Associated Press, "Martin has earned a reputation as a judge capable of stern sentences: In sentencing one violent gang member to life, Martin ordered the man held in solitary confinement and said he would have imposed death if he could."

In June, Martin announced that he was resigning from the bench because he could no longer participate in "a sentencing system that is unnecessarily cruel and rigid." He cited the current "effort to intimidate judges" as well as longstanding onerous punishments for drug offenders.

Judges like Martin are not simply angry over losing some of their prerogatives. "For a judge to be deprived of the ability to consider all of the factors that go into formulating a just sentence," he wrote in a New York Times op-ed piece, "is completely at odds with the sentencing philosophy that has been a hallmark of the American system of justice."

The sentencing guidelines, created under legislation that Congress passed in 1984, were supposed to prevent "unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct." But if they are not sufficiently flexible, they can also prevent warranted disparities, because it's impossible for the guidelines to take into account every factor that might help determine how much punishment a particular defendant deserves.

Unlike judges, the Sentencing Commission does not see individuals; it sees only broad classes of defendants. Members of Congress operate at an even higher level of abstraction, where no punishment is too severe because seeming tough on crime takes precedence over justice, which can only be dispensed one case at a time.