Martha and the Separation of Powers

I have no opinion as to the guilt or innocence of Martha Stewart, although I expect my Republican nephew is right that her support of Democratic candidates had something to do with the way in which the whole affair was conducted. Whatever the motives of the prosecutors, however, the case underlines how much power we’ve given these creatures of the executive at the same time that mandatory sentencing guidelines have turned trial judges into powerless clerks. Ever since Congress discovered that legislating draconic and automatic punishments could win them easy points with a vindictive or fearful public, judges have not have the ability to moderate excessive prosecutions with lenient sentences. All of the discretion vests with the prosecutors, who are responsible to no one. Ironically, this gradual change in our judicial system brings us in line with the traditional practices of Imperial China where it was felt that an independent judiciary would thwart the sacred will of the son of heaven and mandatory minimums were the universal rule.