In Part 1, we saw that controversy is still boiling around sentencing guidelines, which are supposed to guide federal judges in setting sentences. In fact what they do is try to enforce specific sentences for categories of crimes, with specific exceptions. The guidelines are inflexible, and are being "violated" frequently by federal judges, who are dealing with the specifics of cases that they believe do not justify the severe sentences required by the guidelines.

Recently, numerous federal judges have spoken out in opposition:

Supreme Court Justice Anthony Kennedy, speaking to the American Bar Association, said that he believes some federal sentences should be shortened, and specifically criticized federal mandatory minimum sentences.

Carolyn Dineen King, an appeals court chief judge based in New Orleans who heads the judicial conference's executive committee, disagreed with Ashcroft's comment. King said at a news briefing after the group's meeting that judges need flexibility in sentencing to achieve the right result in a specific case and to make sure the punishment is not disproportionately harsh.

On June 26, U.S. District Court Judge John S. Martin published an Op Ed in The New York Times, announcing that he was resigning from the bench due to the PROTECT Act. He argued that, "[f]or a judge to be deprived of the ability to consider all of the factors that go into formulating a just sentence is completely at odds with the sentencing philosophy that has been a hallmark of the American system of justice," and concluded, "I no longer want to be part of our unjust criminal justice system."

On July 18, Judge Myron H. Bright of the U.S Court of Appeals for the Eighth Circuit, in his concurring opinion in United States v. Flores, urged, "I want to conclude by making a plea to the district judges of this country who feel that they should have some say and some discretion in sentencing. Let your opinions disclose your views about the injustice in the sentencing decision or decisions you are obligated to impose by Congressional mandate and/or the Sentencing Guidelines.... [And l]et me say further that judges generally do not object to appropriate guidelines for sentencing decisions but the time has come for major reform in the system. I say in this concurring opinion, as I have said in other sentencing opinions that I have written, 'Is anyone out there listening?'"

The U.S. Supreme Court itself has approved downward departures, in Koon v. United States. They exist because the Sentencing Commission cannot possibly cover every single individual case when drafting the Guidelines. The Guidelines are meant to cover a "heartland" of typical cases.

In a case outside that "heartland," in which the judge believes that certain unusual mitigating factors exist, a downward departure is allowed. That is entirely consistent with the philosophy of the Guidelines – which is to impose punishment that is deserved, and not arbitrary.

The VICTORY Act would continue the assault on the federal judiciary represented by the PROTECT Act. It would further reduce the discretion of federal judges when sentencing drug offenders. It would also make it more difficult for federal judges to invoke the "safety valve" – a legal mechanism whereby judges can sometimes sentence a first-time drug offender below the mandatory minimum sentence.

As I asked in To hell with Congress, say federal judges: Should Congress or judges have the final say on criminal punishment?

There is no doubt in my own mind about the answer to that question, and I doubt that there is much doubt in the minds of most citizens either, because polls have consistently shown that politicians are not trusted. Nevertheless these attacks are being forced by political hacks of both major parties, with justices being forced to take time from their already-overworked schedules to defend not only their own actions, but to defend the right of all American citizens to considered justice.

Make no mistake... this attempted distortion of what is supposed to be balance between our three branches of government... is all about election politics being played out by both major parties. It is already responsible for putting 2.1 million Americans in confinement, and threatens to expand that trend.

This battle can have an enormous impact on the future of our nation.