Ashcroft and Congress Are Pandering to Punitive Instincts

Depriving judges, and even prosecutors, of all discretion to fit the punishment to the crime is not only mindless but also hypocritical.

"When the gates of the prison open, the path ahead should lead to a better life," President Bush said in his State of the Union address. In proposing a $300 million program to help the 600,000 inmates released from prison each year re-enter society, he called America "the land of the second chance."

But there may not be much of a second chance for the tens of thousands of nonviolent offenders and others who are relatively harmless when they enter prison but deeply scarred—in many cases, on their way to becoming career criminals—when they leave five, 10, or 20 years later. One of the reasons is a push by Attorney General John Ashcroft and congressional Republicans to give Ashcroft's Justice Department nearly complete control of the sentencing process and force federal judges to act as rubber stamps, in order to ratchet up the already excessive prison terms for a wide range of federal crimes.

Congress voted last April, with Ashcroft's strong support but precious little debate, to require the federal Sentencing Commission to slash federal judges' already quite limited discretion to give defendants the sentences they deserve in the many cases in which mitigating circumstances call for less severity than is suggested by the applicable federal sentencing guidelines. When the seven-member commission reluctantly complied, an Ashcroft subordinate complained that it had not gone far enough and threatened to go back to Congress. The new law also ordered that judges' departures from the guidelines be reported to the attorney general and Congress—a measure that could threaten judicial independence and "intimidate individual judges," in the words of Chief Justice William H. Rehnquist, a lifelong hard-liner on crime. And a third provision essentially required federal prosecutors to throw the book at criminal defendants by pressing for the most severe sentence possible, no matter what mitigating circumstances there may be.

This so-called Feeney Amendment, named for Rep. Tom Feeney, R-Fla., takes a long step toward depriving judges, and even prosecutors, of all discretion to fit the punishment to the individual crime. Not only is it mindless, it is also hypocritical: Ashcroft and his allies have lionized one judge who went to dubious extremes nine years ago to give a break to a man convicted of burning a cross on an interracial couple's lawn.

That judge is Charles W. Pickering Sr. of Mississippi, a conservative, controversial Bush nominee for a federal appeals court seat who accepted a recess appointment on January 16. Pickering has been assailed by Democrats for (among other things) pressuring federal prosecutors to spare the cross-burner the seven-year mandatory minimum prison term required by federal law. Had a liberal Democratic nominee done the same—for, say a 20-year-old first offender facing 10 years in prison for having 2 ounces of crack cocaine—many of the same Republicans who have lionized Pickering would be trashing him as soft on crime.

It so happens that Pickering was right to see seven years as far too severe a penalty. The 20-year-old defendant had no criminal record or history of racist conduct and was the least culpable of the drunken trio who had burned the cross. The 27-month sentence that Pickering ended up giving him was more than enough. But if this cross-burner deserved a break, then the same is all the more true of the tens of thousands of poor, mostly black and Hispanic kids and others facing long prison terms for less-serious crimes.

For centuries, one of the cornerstones of Anglo-American law has been the principle that within broad legislative limits, convicted defendants' sentences should be set by judges familiar with the facts and circumstances and insulated from political passions. Congress adopted the Sentencing Reform Act of 1984 to fix a big flaw in this healthy constitutional tradition: Equally culpable defendants convicted of similar crimes often received quite different sentences because of the disparate sentencing practices of various judges. The 1984 law created the Sentencing Commission, made up of judges and other experts, to set presumptive sentencing guidelines in the form of a detailed grid taking into account the relative seriousness of the crimes, and the defendants' roles and criminal histories. It also allowed both prosecutors and defendants to appeal allegedly unwarranted departures from the guidelines.

Well-intentioned though it was, the 1984 law overshot its mark by making it harder than it should be for judges to justify departures from the guidelines. Then the crack-cocaine-driven crime wave of the late 1980s so alarmed voters that Congress rushed to require ever harsher mandatory minimum prison terms for a wide variety of drug offenses and other crimes—five years for a minuscule 5 grams of crack; 10 years for 2 ounces; and so on, up to life in prison for repeat offenders. These mandatory minimums overrode the sentencing guidelines, required penalties that proved grotesquely excessive in many individual cases, filled federal prisons with nonviolent offenders, and reduced judicial discretion even more than the 1984 law had done. Then, last year, the Feeney Amendment moved toward eliminating judicial discretion entirely in all federal cases.

The effect of all this has been to shift more and more of the core judicial power to determine individual sentences from judges to prosecutors, who can impose a mandatory sentence upon one defendant and show leniency to the next by choosing among a wide variety of possible charges and giving breaks to defendants who cooperate against others. This change is very much for the worse: While judges are supposed to be neutral arbiters dispensing fair and impartial justice, prosecutors have a natural institutional bias toward severity.

But Congress and Ashcroft don't even trust the prosecutors. Ashcroft underscored this in July with a directive that came close to ordering all federal prosecutors to seek the most severe possible sentence in virtually every case, with a few exceptions including cases in which the defendant has information to trade.

Even many conservative, tough-on-crime federal judges have long deplored this trend toward mindlessly severe sentences. Some have stepped down to avoid having to impose sentences that they consider unjust. And in September, the 27 federal judges on the policy-making Judicial Conference of the United States called unanimously for repeal of the Feeney Amendment.

Judges such as Rehnquist are not the only tough-on-crime hard-liners who can see that the punitive trend has gone too far. So can some conservative Republicans in Congress and almost all scholars, including conservatives such as James Q. Wilson and John J. DiIulio Jr., the former head of Bush's faith-based initiative office. DiIulio, a self-described "crime control conservative" who wants to "incarcerate the really bad guys," wrote in 1999: "The nation has 'maxed out' on the public safety value of incarceration," and the "pendulum has now swung too far away from traditional judicial discretion."

Disregarding this expert consensus, the Clinton administration supported Congress's ever more rigid sentencing regime out of political cowardice. Now Ashcroft and Congress have carried this usurpation of judicial power to new extremes. The ostensible reason for the Feeney Amendment was that judges had departed downward from the sentencing guidelines more and more frequently since 1991. This was true—but mainly because Congress had made the guidelines too harsh, as Supreme Court Justice Anthony Kennedy stressed in a speech last August. And while a small minority of federal judges probably are too soft on crime, prosecutors can always appeal unduly lenient sentences. The real reasons for the Feeney Amendment, I suspect, were political opportunism and the unreasonably punitive philosophies of Ashcroft and his allies. Whatever the reason, this sentencing regime is laying waste to many young lives, and it may increase crime in the long run by turning relatively harmless, potentially salvageable young offenders into prison-hardened predators.

The irony of all this pandering to voters' most punitive instincts has been to require sentences that would seem excessive or even outrageous to most of the same voters, in thousands of cases, if they knew the detailed facts. It's one thing to vote for a candidate who pledges tough mandatory sentences for drug kingpins; it's something else to see those sentences applied to the poor, hapless losers and kids who often get swept into the net.

President Bush, himself a reformed drinker, said in January 2001 that "long minimum sentences for the first-time [drug] users may not be the best way to occupy jail space and/or heal people from their disease." He should tell his attorney general.