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Restore public trust

A little impartiality could go a long way: The next president needs to find an independent-minded attorney general-and then set about changing the way justice is administered, from law enforcement to the court system

No agency of government is more influential than the Department of Justice, charged as it is with vast responsibilities, ranging from enforcing federal laws, fighting crime, running the criminal justice, immigration, and drug enforcement agencies, to administering and defending antitrust and civil-rights statutes. The department also argues before the Supreme Court, recommends judges for presidential appointment, and as the department's mission statement says, "ensure[s] fair and impartial administration of justice for all Americans." And no department is more in need of radical overhaul. For especially on the latter score-impartial administration of justice-the department under President Clinton and Janet Reno has failed miserably. Justice must regain the public's trust. The department's mandate after all gives its 123,000 attorneys, investigators, border patrol agents, and marshals awesome power to disrupt people's lives. It is no place for favoritism or political cronyism. The department must be-and must be seen by the average American to be-above politics. DOJ regrettably has a long history of cronyism. Some years ago I was invited to attend a conference on the Nixon presidency held at Hofstra University, where a prominent historian said that by appointing his campaign manager attorney general, Nixon had politicized DOJ to a degree "unprecedented" in American history. When my turn came to speak, I acknowledged that the Nixon DOJ was no paragon of purity-but then added that if they could hear that word "unprecedented," Jack and Bobby Kennedy would be chortling in their graves. (JFK, you will recall, appointed his brother Bobby as his attorney general.) While, strictly speaking, Janet Reno isn't a Clinton crony, she has been politically subservient (repeatedly quashing, for instance, the recommendations of career prosecutors and the FBI that Vice President Gore's fundraising activities be investigated by an independent prosecutor); and she has easily been controlled by a string of Clinton cronies, beginning with Webster Hubbell, who were strategically placed at DOJ. This administration has undermined public confidence in the rule of law-and this has dangerous implications, for without it our experiment in self-government cannot long succeed. The first step for the next president, therefore, is to appoint as attorney general a person with impeccable professional qualifications and demonstrated integrity and political independence. Perhaps a tough federal judge or someone like former Sen. John Danforth of Missouri could begin to rebuild public confidence in this department. On his first day the new attorney general should clean house. He should then set out to reverse the culture of coercion that has crept into federal law enforcement at Justice (and other agencies). The raids at Waco and at the Gonzalez home in Miami, besides being outrageous in themselves, are all too typical of a dangerous trend toward militarization of law enforcement. As our actual military spends more and more of its time on "peacekeeping" missions-which are indistinguishable from cop-on-the-beat work in bad neighborhoods-the lines between police and military are getting blurred here at home. I saw what this leads to when I recently boarded a KLM flight (the Dutch airline) from Detroit to Amsterdam. On the jetway I, along with the other passengers, encountered eight U.S. Customs officials wearing black uniforms; they looked menacingly like a swat team. It turns out, I found out later, they were in a training program for dealing with smugglers; and they treated us like smugglers, rudely barking out orders to passengers, forcing them to submit to probing examinations. Their behavior was more like Gestapo agents than U.S. officials. I was embarrassed that foreign nationals would leave the United States with this impression of America. Aside from restoring confidence in the administration of justice, a high priority for the department is to rescue our Constitution from runaway judicial activists. Perhaps a Republican president is more likely to do this than a Democratic one, but that may be problematic: After all, some of the most outrageous recent Supreme Court opinions proclaiming absolute and exclusive judicial supremacy over interpreting the Constitution were issued by Republican-appointed justices. The latest offender is the chief justice himself, who held an important DOJ post in the Nixon administration and was originally appointed to the high court by Nixon. In the court's recent opinion upholding the Miranda rule, William Rehnquist declared that the court had the ultimate authority on constitutional questions and that Congress had no authority to challenge the court's opinions-an assertion that would have horrified our Founding Fathers. The new administration's DOJ must screen potential judicial nominees carefully, not only to find "strict constructionists" (a misunderstood term), but to find jurists who recognize that the judiciary is only one part of a well-balanced constitutional system, and that the courts are not unelected legislatures for enacting social reforms that have been rejected by the elected legislatures. Not long ago Justice Ruth Ginsburg boasted that the Equal Rights Amendment, which was rejected by the American people, was no longer needed since its provisions have now been effectively imposed by the courts as in the VMI case, in which she wrote the court's opinion. This shameless judicial usurpation of the political process must stop. As Justice Ginsburg (along with her colleagues) knows, the court is winning the battle for supremacy among the three supposedly co-equal branches. Yet the framers of our Constitution were extremely wary of judicial power; they granted the judiciary few powers, and left the exact boundaries of those powers unsettled, believing instead that national conversation would lead to an uneasy but balanced modus vivendi among the three branches. The Constitution itself is silent about the power of judicial review, which Justice Rehnquist now claims to be final and absolute; the court assumed this in an 1803 decision and used it only sparingly until recent times. The attorney general, as the executive branch's top legal officer, can help retake the initiative on this crucial issue through the arguments his department makes in court, through the statements the president makes (with the AG's advice) when he vetoes a bill on constitutional grounds, and through the use of the bully pulpit. A respected AG could start a healthy national debate on this issue, which is crucial to maintaining the balance of powers within our federal system. Certain specific policy proposals are long overdue: The first concerns religious liberty. The past few decades have witnessed a steady erosion in the free-exercise rights of Americans. Churches that dare to exercise their biblically mandated prophetic function are threatened with the loss of tax-exempt status. Christians who wish to maintain a simple Christian presence in our schools and universities find that they have to clear hurdles and obstacles that groups advocating, for instance, mandatory vegetarianism, don't encounter. Christians who protest against abortion have discovered that they constitute, in the words of Justice Antonin Scalia, "a currently disfavored class." So disfavored, in fact, that they are treated as racketeers, prosecuted under a federal anti-racketeering law. This statute was enacted to help put away the kind of people whose antics are portrayed on The Sopranos, not to lock up church secretaries or the followers of Mother Teresa. This abuse of law must stop. The current administration has been indifferent to this violation of the Constitution and our civil-rights law, which protects Americans from discrimination based on religion. In fact, when asked by the United States Civil Rights Commission about its lack of enthusiasm for enforcing civil-rights protection in the area of religion, DOJ was reduced to claiming that private enforcement was the best approach. Could you imagine a similar answer being given if the subject were discrimination based on race or sex? The next attorney general and his assistant AG for civil rights should therefore make protecting the free-exercise rights of all Americans a continuing priority. And our next solicitor general, who represents the United States before the Supreme Court, must press the court to stop treating religious Americans as second-class citizens and restore freedom of religion to the position the founders intended when they made it the first of the enumerated rights guaranteed in the Bill of Rights. Second, 25 years of working in prisons has convinced me that America needs to re-think its approach to prisons and prisoners, especially low-level offenders. I've witnessed, firsthand, the waste, bitterness, and injustice engendered by the bipartisan posturing about getting "tough on crime." It makes perfect sense to get violent or dangerous offenders off the streets. In fact, it's at the heart of the government's biblical mandate to protect the innocent and punish the wrongdoer. But, as I write this, the United States prisoner population has passed the two million mark for the first time, up from slightly over 200,000 when I was in prison. Even people who advocated more prisons and longer sentences are publicly asking if we haven't reached the point of diminishing returns, and if we should not punish lesser offenders in other ways. One of these is John DiIulio of the University of Pennsylvania, a Prison Fellowship board member. In an article in The Wall Street Journal, Mr. DiIulio wrote: "Two million prisoners are enough," and "it's time that policymakers change focus, aiming for zero prison growth" (italics mine). Mr. DiIulio pointed out that too many new prisoners are low-level drug offenders, the "pathetic losers" who are addicted to stuff that landed them in prison. Locking them up for long stretches of time at a cost of more than $25,000 a year neither serves the public-since these offenders can easily be replaced-nor does them any good. To the contrary, as recidivism rates of 70 percent attest, it often turns them into career criminals. Instead, we should be saving money and creating space for dangerous offenders by finding alternatives to incarceration that both hold nondangerous offenders accountable and help them overcome their addiction. And restitution should be demanded of all nonviolent offenders. I've advocated this before legislatures across the country, and lawmakers will often come up to me afterwards saying what great sense my argument makes. They often will ask me where the idea came from, which gives me a wonderful opportunity to suggest that the legislator go home, dust off his Bible, and read Exodus 20 or the story of Zachaeus. It is a biblical principle and it works. What it needs is public support and the leadership of the new administration. Other approaches can be tried as well, like bringing faith-based solutions to bear on criminal justice problems. The three prisons that Prison Fellowship runs in Texas, Iowa, and Kansas are cutting recidivism rates dramatically. This is an idea whose time has come and should be vigorously advocated by the next administration. The attorney general must champion needed reforms like restitution, intensive probation and supervised parole, community service, and participation of the faith community in working with offenders and ex-offenders. He can also overhaul the Federal Sentencing Guidelines and work to repeal mandatory minimum prison sentences. Thanks to these, judges are no longer able to tailor sentences to fit the offender's particular circumstances, including his degree of actual culpability. Sentences today are overly punitive and capricious. Consider the case that came to national attention this past July when President Clinton commuted the prison term of Serena Nunn, a woman sentenced in 1990 to 14 years for a minor role in a Minneapolis drug ring. The sentence was so disproportionate that the judge who sentenced Ms. Nunn, with the blessing of the prosecutor, wrote the president asking him to commute her sentence. As Judge Doty told The Washington Post, every week "federal judges are giving sentences in drug cases that are simply horrendous. None of us are happy with mandatory minimums." Trial judges aren't the guidelines' only critics. This past term, in Apprendi vs. New Jersey, Justices John Paul Stevens and Clarence Thomas wrote opinions that, for many scholars, raised doubts about the constitutionality of the guidelines themselves. But we should not have to depend on executive clemency to undo the injustice caused by the guidelines, nor wait for the courts to overturn them. Revising federal sentencing so that it serves public safety and justice, rather than the political needs of our representatives, should be a major priority. While the workings of the Department of Justice may seem arcane to some readers, Christians have a vested interest in ensuring the proper administration of justice. The promotion of justice is at the heart of the state's biblical role. Justice, properly applied, punishes evil and encourages good. Proper enforcement of our laws promotes order and public safety and allows us, in the words of Scripture, to live "peaceful and quiet lives in all godliness and holiness." For this to happen, the next attorney general must be committed to learning from the mistakes of the past eight years. He must make politics the servant of justice and not, as we have witnessed, the other way around.

-Mr. Colson is chairman of Prison Fellowship