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Ashcroft makes blacklist of judges { August 7 2003 } Original Source Link: (May no longer be active)
http://www.washingtonpost.com/wp-dyn/articles/A25892-2003Aug6.htmlhttp://www.washingtonpost.com/wp-dyn/articles/A25892-2003Aug6.html
Ashcroft Orders Tally Of Lighter Sentences
Critics Say He Wants 'Blacklist' of Judges
By Edward Walsh and Dan Eggen
Washington Post Staff Writers
Thursday, August 7, 2003; Page A01
Attorney General John D. Ashcroft has ordered U.S. attorneys across the country to become much more aggressive in reporting to the Justice Department cases in which federal judges impose lighter sentences than called for in sentencing guidelines.
The directive, contained in a July 28 memo from Ashcroft, is the latest salvo in an escalating battle over how much discretion federal judges should have in handing down sentences in criminal cases. The more extensive reporting will lay the groundwork for the Justice Department to appeal many more of those sentencing decisions than it has.
The Ashcroft memo amended a section of the United States Attorneys' Manual that previously said federal prosecutors had to report to the department only those sentences that prosecutors had objected to and wanted to appeal. In the new directive, U.S. attorneys were told to report all "downward departure" sentencing decisions that meet certain criteria in nine categories.
The effect of the change will be to shift most decisions on whether to appeal a sentence that is less than called for in sentencing guidelines from prosecutors in the field to Justice Department lawyers here.
Ashcroft's critics reacted angrily to the memo, which was first reported by the Wall Street Journal. Sen. Edward M. Kennedy (D-Mass.) accused Ashcroft of engaging in an "ongoing attack on judicial independence" and of requiring federal prosecutors "to participate in the establishment of a blacklist of judges who impose lesser sentences than those recommended by the sentencing guidelines."
Justice Department lawyers, who had championed even tougher measures to limit judicial discretion in sentencing, said the change is needed because of the increasing willingness of some judges to ignore sentencing guidelines.
That nearly all departures from the guidelines have resulted in more lenient sentences further angered Ashcroft and his conservative-minded attorneys, officials said.
"Some judges felt they were not bound by any guidelines," one senior Justice Department official said. "They were ignored out of some sense that the judge was not beholden to them. . . ."
Department spokesman Mark Corallo said that under the previous system, officials in Washington were alerted to problematic sentences on an "ad hoc" basis. By requiring U.S. attorney's offices to report the lighter sentences in a systematic way, Corallo said, Ashcroft and his advisers will be able to identify judges and jurisdictions that deviate from legislative mandates on sentencing.
"The purpose of this is to make sure that all of our U.S. attorneys understand that we intend to apply U.S. law evenly across all jurisdictions," he said. "They should be aware of excessive downward departures and, if necessary, appeal those decisions."
Congress set the stage for the latest showdown over sentencing practices in April when it adopted an amendment to the "Amber alert" legislation on child abductions. The amendment, crafted and pushed by the Justice Department, restricted the ability of federal judges to depart from the sentencing guidelines and made it easier to appeal and overturn "downward departures" from the guidelines.
Chief Justice William H. Rehnquist, the American Bar Association and others strongly objected to the amendment. In a letter to Sen. Patrick J. Leahy (D-Vt.), Rehnquist said that the measure "would seriously impair the ability of courts to impose just and reasonable sentences."
According to statistics compiled by the U.S. Sentencing Commission, 35 percent of the sentences handed down in federal court in fiscal 2001 fell below the range set in the sentencing guidelines. Almost half of those involved plea bargain agreements or other cases of "substantial assistance" to prosecutors, but 18 percent of the "downward departures" were for other reasons. Federal judges imposed sentences that exceeded the guidelines in less than 1 percent of the cases; the Justice Department appealed 19 of more than 11,000 "downward departure" sentencing decisions.
U.S. District Judge Irene M. Keeley, head of the ABA's National Conference of Federal Judges, said federal judges "will continue to evaluate each sentence on a case-by-case basis. I believe that if the facts are studied carefully, there is no evidence that federal district judges have been departing from the current sentencing guidelines."
Some federal judges have spoken out forcefully against what many of them see as a congressional and Justice Department assault on their independence. U.S. District Judge John S. Martin Jr. resigned from a federal court in Manhattan in June and accused Congress of attempting "to intimidate judges."
"For a judge to be deprived of the ability to consider all of the factors that go into formulating a just sentence is completely at odds with the sentencing philosophy that has been the hallmark of the American system of justice," Martin wrote in an op-ed page article in the New York Times.
Last month, in a concurring opinion in a sentencing case, senior Judge Myron H. Bright of the U.S. Court of Appeals for the 8th Circuit said that "an already difficult situation has been made worse" by Congress's recent enactment of legislation affecting the sentencing guidelines. "It is not my position to criticize Congress," Bright wrote. "I simply point out that this enactment will exacerbate the problems with the guidelines by making it even more difficult for district judges to do justice under the law as circumstances warrant."
In his memo to prosecutors, Ashcroft quoted approvingly from a May 5 speech by Rehnquist in which the chief justice said it was up to Congress to set sentencing policies.
The memo did not quote another section of the same speech in which Rehnquist said that gathering information on sentencing practices could help Congress make decisions, but also "could amount to an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties."
© 2003 The Washington Post Company
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