Stealing Judges’ Power

Chief Justice William H. Rehnquist is no bleeding heart. He’s often tougher on suspects and convicted felons than his other tough-on-crime Supreme Court colleagues. But Rehnquist thinks Congress went too far last year by tightening already harsh federal minimum sentencing guidelines and threatening intimidation of judges who depart from them.

The chief justice is particularly incensed over amendments to the Protect Act, which Congress passed last year. The law is a mouthful -- the 2003 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act. Silly acronym aside, the Protect Act cuts further into judges’ little remaining discretion to determine a fair and just sentence.

The law, which President Bush signed in April, directs the U.S. Sentencing Commission to further narrow the circumstances under which federal judges may show leniency toward criminals at sentencing. Congress created the commission in 1984 to reduce what it saw as unwarranted disparities in judges’ sentences for similar crimes. Yet the sentencing guidelines and mandatory minimum terms that Congress and the commission have drafted make judges into clerks who look up the offense, plug in data on the circumstances of the crime -- such as whether the defendant used a gun or had prior convictions -- and then calculate the time to be spent in prison. The essence of a judge’s skill -- his or her seasoned gut feeling about the defendant’s sense of remorse or prospects for rehabilitation -- plays no part in this process.

Over the years, anti-crime politics have pushed guidelines toward tougher sentences. Now, a growing number of judges across the political spectrum are pushing back. In his annual state of the federal judiciary report released Jan. 1, Rehnquist slammed Congress for the Protect Act’s “dramatic changes,” which eliminated some of the few remaining technical grounds allowing a judge to reduce a sentence below ranges in the guidelines. He expressed anger as well at provisions that allow the attorney general or congressional committees to order reports on the sentencing records of specific judges. Rehnquist declared this an “unwarranted and ill-considered effort to intimidate individual judges.”

The sentencing guidelines have long undermined judges’ unique expertise. Now they threaten judicial independence as well, raising the prospect that jurists who don’t always abide by minimum sentences, even for the most rational reasons, could be hauled before a congressional star chamber to account for their actions.

Congress should give Rehnquist’s objections their due and repeal the poorly named Protect Act amendments.