Ashcroft memo targets lenient sentences


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By Curt Anderson



Aug. 7, 2003 | WASHINGTON (AP) -- Attorney General John Ashcroft wants prosecutors to closely monitor which judges impose more lenient sentences than federal guidelines recommend, a step some critics say could limit judicial independence.

Ashcroft directed U.S. attorneys nationwide to promptly report to Justice Department headquarters when a sentence is a "downward departure" from guidelines and not part of a plea agreement in exchange for cooperation.

"The Department of Justice has a solemn obligation to ensure that laws concerning criminal sentencing are faithfully, fairly and consistently enforced," Ashcroft wrote in the memo issued July 28.

Critics say the result will be more power in the hands of prosecutors and impermissible restraints on judicial discretion.

"It's telling judges from the get-go, 'If you want to depart that you will be put on a list and you will be watched,"' said Ryan King, research associate with The Sentencing Project, a nonprofit group seeking alternatives to prison. "We're no longer judging a case on the merits."

Prosecutors were told in Ashcroft's memo to make sure the government is prepared to appeal more of these sentences if such a decision is made by lawyers in Solicitor General Theodore Olson's office. The upshot is that more decisions to appeal will be made at "main Justice" in Washington rather than left to prosecutors in the field.

Justice Department spokesman Mark Corallo said the intent is to "get an accurate reporting of how the sentencing guidelines are being applied."

"It is an effort to make sure that someone who is convicted of a crime in California is treated no differently than a person who is convicted of the exact same crime in Massachusetts," Corallo said Thursday.

The sentencing guidelines were developed by the U.S. Sentencing Commission, created by Congress in 1984 to reduce disparities in sentences imposed around the country _ subject to some judicial flexibility.

The memo, first reported by The Wall Street Journal, is part of a Justice Department effort to implement a law passed by Congress earlier this year intended to bring even greater uniformity to federal prison sentences.

President Bush in April signed into law the wide-ranging child protection legislation that, among other things, will establish a national "Amber Alert" communications network to respond to child abductions.

Tucked into that measure was a provision sponsored by Rep. Tom Feeney, R-Fla., intended to make it more difficult for federal judges to depart from federal sentencing guidelines and easier to appeal light sentences.

Prosecutors have complained for years that judges have too much leeway in imposing sentences. According to the most recent statistics, federal judges in 2001 departed from sentencing guidelines in about 35 percent of cases. About half those cases involved plea bargains endorsed by prosecutors.

Feeney's amendment drew opposition from the American Bar Association, the National Association of Criminal Defense Lawyers and Chief Justice William H. Rehnquist, who said in a letter to the Senate Judiciary Committee that it "would seriously impair the ability of courts to impose just and reasonable sentences."

The U.S. Sentencing Commission also opposed the amendment, urging that it be permitted to complete a lengthy study into the reasons behind judges' decisions to impose lighter sentences.

In a letter to the Judiciary Committee, the commission's members noted that in 2001 the total departure figures were skewed higher because of certain federal policies in immigration cases.

Sens. Edward M. Kennedy, D-Mass., Patrick Leahy, D-Vt., and other Democrats have introduced a bill to essentially undo the Feeney amendment and instead wait for the Sentencing Commission study.

"Congress needs to undo the damage that the Justice Department is doing to the federal criminal justice system," Kennedy said. "The independence of the federal judiciary serves the nation well."