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Archive for Wednesday, August 13, 2003

Ashcroft’s order out of line

August 13, 2003

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Of the many political battles under way in the United States today, one of the most fascinating, and somewhat strange, is that between the attorney general of the United States, John Ashcroft, and the whole of the federal judiciary. That battle took on a new intensity last week as both sides raised the rhetoric to an unprecedented pitch.

The battle itself is rather odd. In the mid-1980s, in response to a perception that some judges were giving out "lighter" sentences than was desirable, Congress enacted what are known as sentencing guidelines. These set out what are, in effect, mandatory sentences for the various federal crimes.

These guidelines were, from the start, disliked by the federal judiciary because they were seen as a new and uncalled-for restriction on the discretion of federal judges. Nonetheless, since they were passed by Congress and signed by the president, they became law and binding upon judges.

In a nod to the judiciary, however, the federal sentencing guidelines were tempered by a provision that granted limited discretionary powers to judges to enable them to depart from the guidelines and give more lenient sentences in certain cases. This discretionary power reserved to the judges has now become a bone of contention between the attorney general and the judiciary.

Atty. Gen. Ashcroft has long made his dislike of leniency in sentencing well known. In a highly controversial order last year, Ashcroft required all U.S. attorneys to inform his office of all cases in which a decision about whether to seek the death penalty needed to be made. It was made clear that Ashcroft wanted these decisions to be made at his level and not by the U.S. attorneys, if that was necessary to ensure that the ultimate penalty would be sought in cases.

This decision is considered troubling by many lawyers, including former and present U.S. attorneys who feel that it is an unwise centralization of power in the Attorney General's Office. But no one has disputed Ashcroft's legal right to issue and enforce this order. U.S. attorneys work for the attorney general.

Last week, Ashcroft took his campaign a giant step farther. In an unexpected and highly unusual move, the attorney general ordered all U.S. attorneys to begin to monitor federal judges and to track the number of times individual judges used their discretion to depart from the sentencing guidelines. Reports of this monitoring are to be sent to the attorney general in Washington. This has raised a chorus of protest.

Not least among the protesters of this new policy of the attorney general have been Chief Justice William Rehnquist and, most vocally, Associate Justice Anthony Kennedy. Neither Rehnquist nor Kennedy are liberals. Both are longtime Republicans and both have conservative judicial records. Neither can be characterized as soft on crime and criminals. Yet both seem to think that the attorney general's latest order is a mistake, if not an outrage. They are right.

When the Founding Fathers set up our government they wisely established a series of checks and balances among the three branches: executive, legislative, judicial. The independence of the judiciary has been a cornerstone of our system of government since the beginnings of the nation and, before that, of English parliamentary government, since the 17th century. Without an independent judiciary there can be no assurance of judicial integrity and fairness in our legal system.

Justice Kennedy, in a speech before the American Bar Assn. last week, responded to Ashcroft's new policy by urging Congress to abolish the sentencing guidelines altogether. There can be very little doubt that a primary purpose of this new monitoring of federal judges is an attempt by the attorney general to intimidate federal judges into using their discretion less often.

This is both a violation of the rights of our federal judges and a blatant attempt to circumvent the will of Congress along with the law that was passed by Congress and signed by the president of the United States signed. The attorney general of the United States, of all people, should not be doing such a thing.

Ashcroft has, more than once, during his term in office, shown his lack of regard for the Constitution and for the laws passed by Congress. He does a disservice to the nation and to his president. It is, perhaps, time for him to rethink his actions and, if he cannot cease to act in this way, to resign.

-- Mike Hoeflich is a professor in the Kansas University School of Law.

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