Archive for Friday, October 3, 2003

Ashcroft draws harder line

October 3, 2003


Atty. Gen. John Ashcroft is writing memos again.

The last time he fired off a directive that garnered widespread headlines was when he instructed his 94 U.S. attorneys' offices to slow-play fulfilling Freedom of Information Act requests. This time he's directing his federal prosecutors to only use plea bargains in "limited, narrow circumstances."

"In virtually all cases, prosecutors must bring the toughest charges available, yielding the toughest penalties under the sentencing guidelines," The Associated Press reported Ashcroft as saying in a speech Monday in Milwaukee.

It's an edict that a Levite would love.

Ashcroft's memo replaces a policy established by former Atty. Gen. Janet Reno that allowed prosecutors greater discretion in determining if the charges and potential punishment fit the crime.

More than 90 percent of the 60,000 cases handled by federal prosecutors in 2001 -- the last year for which complete figures are available -- resulted in plea bargains. Mr. Law and Order will have no more of that.

Prosecutors historically have used plea bargains to get defendants to cooperate in testifying against bigger fish in the criminal food chain. Plea bargains also act the same way that bacteria do in a septic tank: They keep things from clogging up.

If every individual charged with a federal offense goes to trial, the system will grind to a halt. Without plea bargains, the country would need hundreds of additional judges plus the ancillary personnel to try the cases.

And that's just the human capital needed. The country doesn't begin to have enough courtrooms.

Heaven forbid that Ashcroft would think pragmatically.

The plea bargain memo comes on the heels of Ashcroft's July 28 directive to all federal prosecutors outlining the Justice Department's policies on "downward departures," sentences that may be lighter than the federal sentencing guidelines.

Prosecutors are not to "acquiesce" to departures except in rare occurrences. Should a judge impose a "downward departure" over the prosecutor's objections, the prosecutor is supposed to report it to the department.

Justice isn't the goal here. Well, at least not "equal" justice. Ashcroft isn't interested in tracking judges who impose sentences that are harsher than federal guidelines. He just wants a paper trail on judges who might exercise ... well, "judgment" in giving lighter sentences.

One supposes there's no such thing as a judge who can be too severe, at least not for Ashcroft.

The attorney general may be the target of the latest criticism, but other guilty parties lurk out of the spotlight: Congress and President Bush.

Congress passed the PROTECT Act. Bush signed it.

Never heard of the PROTECT Act? Yes, you have, but the part that got media coverage -- at least in Texas, where the story of little Amber Hagerman's abduction and slaying was big news -- was the federal version of the Amber Alert.

Tucked into this law are mandatory minimums for a few crimes and a directive to the U.S. Sentencing Commission to amend the U.S. Sentencing Guidelines "to ensure that the incidence of downward departures are substantially reduced."

Should he want a defense for his tough-guy act, Ashcroft could say he's just doing the bidding of Congress and the White House.

Federal sentencing guidelines have their place. Establishing a range of possible punishments for most crimes allows for nationwide consistency in how someone may be sentenced.

But judges must be allowed to depart from those guidelines. No two circumstances of a crime are identical.

Last week, the U.S. Judicial Conference of the United States voted to support the repeal of the PROTECT Act.

Three Supreme Court justices, including Chief Justice William H. Rehnquist and Justice Anthony M. Kennedy, are on the record as thinking that mandatory minimum sentences are unfair and that they take away the flexibility needed in the judicial process.

"It's not going to advance the cause of law enforcement, in my opinion, and it's going to set back the cause of fairness in sentencing," Justice Stephen G. Breyer said during a Sept. 21 talk reported by AP at the John F. Kennedy Library and Museum.

If one were prone to cynicism, a look at a calendar and Bush's poll numbers might reveal the reason for all this "lock-'em-up-and-throw-away-the-key" posturing.

Guess "compassionate" won't be the adjective used for "conservative" in Campaign 2004.

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