Judging Judges


This week Chief Justice William H. Rehnquist reiterated his criticism of congressional efforts to track federal judges' sentencing practices, in language almost identical to remarks he made in a speech last May. In his annual report on the federal judiciary, Rehnquist warned that the attempt to discourage "downward departures" from the minimums indicated by federal sentencing guidelines "could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties."

There's really no dispute that making lists of naughty judges is an effort to intimidate them. The issue is whether the intimidation is "unwarranted and ill-considered," a threat to judicial independence and the separation of powers, as Rehnquist sees it, or an appropriate response to a "growing problem of downward departures" that is "undermining sentencing fairness throughout the federal system," as House Judiciary Committee Chairman F. James Sensenbrenner (R-Wis.) puts it.

There's an easy answer to the question of how much discretion judges ought to have in sentencing: just the right amount. Either too much or too little can result in unjust punishment, and striking the right balance is tricky. But it's important to recognize that limiting the authority of judges means increasing the authority of prosecutors, who in many cases can essentially determine a defendant's sentence by deciding how to charge him. And given the incentives that prosecutors face, trusting them to sentence people is a bigger threat to fairness than the occasional soft-hearted judge.

The chief problem with the federal criminal justice system is not excessive lenience. If judges can make draconian sentences less harsh (especially for nonpredatory "crimes") without violating the law, more power to them. Unfortunately, Congress seems intent on giving them less.