In my series "Crime is down. Was it worth it?" in mid-July, I described the changes in our laws, especially federal laws, that have resulted in more than 2.1 million Americans now being confined in prison and jail.

Mandatory minimum sentences have been one of the most tragic changes in the justice system, part of a political "get tough on crime" attitude in Congress. As so often results from legislation, the circumstances and distinctions of individual cases are ignored by mandatory minimum sentencing guidelines. The guidelines attempt to force federal judges to impose sentences they sometimes believe to be excessively long.

Fortunately, many judges have spoken out against the sentencing guidelines, including two Supreme Court Justices. More importantly, as reported by USA Today, judges are thumbing their noses at the guidelines and instead imposing sentences they believe are just.

More than 10,000 of nearly 55,000 federal sentences in fiscal 2001 — about 18% — were "downward departures" from the guidelines, according to the U.S. Sentencing Commission, a federal agency created in 1984 to implement the guidelines.

Such lenient sentences have become more frequent since 1995, when 8.4% of federal sentences were less than what were called for under the guidelines, which were designed to make punishments consistent across the nation.

The rising number of lenient sentences in all 12 of the nation's federal judicial circuits has fueled an ongoing tussle between Congress and the judiciary. At issue, legal analysts say, is a fundamental question:
Should Congress or judges have the final say on criminal punishment?

I find it very hard to understand how anyone can take that question seriously. Judges are justice specialists who hear the details of each case, while legislators are distant political beings, trying to impose generalized rules on judges. Mandatory minimums are an absurd presumption on the part of legislators. Congress may be within their rights in doing so, but that does not make it wise or just.

For more on the subject, see my series "Crime is down. Was it worth it?" parts 1, 2, 3, 4 ,5... in particular Part 3, and "Is Justice Kennedy a libertarian hope?"