CHICAGO - What would you say about a federal judge who rails against criminals of all sorts, but then shows extraordinary leniency to a convicted cross-burner? For the Bush administration, the answer seems to be, "You're promoted." But that's getting ahead of the story. To understand it, we have to start at the beginning.
On the night of Jan. 9, 1994, Earnest and Brenda Polkey and their 2-year-old daughter were asleep in their home in Walthall County, Miss. An interracial couple in the Deep South, the Polkeys had been subjected to steady harassment, including gunshots. That night, the threats mounted and three white youths burned an 8-foot cross on their front lawn. The message was clear - the Polkeys were in danger.
After a six-week investigation, the FBI apprehended three young men and charged them with violating hate crime laws. Two of them pleaded guilty in return for reduced sentences. The third - Daniel Swan, 20 - decided to risk trial.
Mr. Swan's defense - to cross burning - was that he lacked the "required animus" to be guilty of hate crimes. But the predominantly white jury didn't buy it, taking only two hours to find him guilty on all counts. Under federal law, the mandatory minimum sentence was seven years: two years for racial intimidation and another five for using fire in the commission of a felony. It's a stiff sentence, but it's a serious crime, and the law is inflexible.
Or at least the law seemed inflexible until Mr. Swan came up for sentencing before U.S. District Judge Charles Pickering. At first, Judge Pickering seemed unlikely to show much mercy. Lawyers regard him as "tough on sentencing," and he is known to advocate stern justice and victims' rights. Nonetheless, Judge Pickering immediately embarked on a personal campaign to reduce Mr. Swan's sentence. It wasn't going to be easy. The mandatory minimum under the "fire/felony" law didn't give the judge any discretion, so his only option was to pressure the prosecutors to drop that count.
He ordered them into chambers for several off-the-record conferences at which he argued that the sentence was "draconian," especially in view of the lighter sentences - probation and home confinement - given to the two who pleaded guilty. One of those two was a juvenile and the other was described as "of low IQ," and, of course, it was a plea bargain. But that did not justify the disparity in the judge's view. He derided the statutory sentence as "absurd, illogical and ridiculous."
When the prosecutors disagreed, Judge Pickering issued an unprecedented order instructing them to personally discuss the case "with the attorney general of the United States." He demanded that the government provide him with a list of sentences in other cross-burning cases for comparison. And when he didn't get an answer, he made an ethically improper telephone call to a Justice Department official in Washington.
According to one of the prosecutors, the judge intimated that he could simply reverse the conviction and grant the defendant a new trial if the government did not accept a reduced sentence. The prosecutors relented. The "fire/felony" conviction was vacated, and Mr. Swan was sentenced to 27 months.
Would seven years really have been an "absurd" sentence for cross burning, warranting such a remarkable intervention for the defendant? Was it just a "single aberrational instance," as the judge claimed?
Well, not exactly. Cross burning is an act of racial terrorism that has been used to intimidate African-Americans for decades. It is not simply a prank. It is the symbol of night-riding lynch mobs. The federal government has every reason to come down hard on cross burners, to punish offenders and deter others. And Daniel Swan was no naive accomplice. He provided the truck and the lumber necessary to the crime.
Now Judge Pickering has been nominated by President Bush to sit on the 5th Circuit Court of Appeals, which hears many of the most important civil rights cases in the country. The Senate Judiciary Committee is expected to vote on the nomination within a few weeks.
Judge Pickering told the committee that a lengthy mandatory sentence was unfair to the cross-burning Mr. Swan, but in more than 11 years on the bench, he has never published any other opinion decrying disproportionate sentencing. According to the Almanac of the Federal Judiciary, he is best known for increasing sentences rather than lowering them.
Mr. Bush once promised to appoint judges who would respect the law as written, yet here we have a nominee who did everything he could to bend the law in favor of a convicted cross burner. That isn't just activism, that's a shame. And it certainly isn't the sort of judging we need on the appellate court.
Steven Lubet is a professor of law at Northwestern University. He is the co-author of Judicial Conduct and Ethics (Lexis Law Publishing, 2000).