[ OUR OPINION ]
Ashcroft set procedure
for intimidating judges
FEDERAL judges are not particularly happy about sentencing guidelines that they are required either to follow or to justify reasons for departing from them. Attorney General John Ashcroft is angry about such downward departures and has ordered federal prosecutors to gather data that he can use to intimidate judges whom he regards as too lenient. Judges should ignore Ashcroft's antics and resist the temptation to reject prosecutors' own requests for rewarding cooperative defendants with lighter sentences.
Attorney General John Ashcroft is directing U.S. attorneys to report cases in which judges impose softer sentences than guidelines recommend.
In a July 28 memorandum, Ashcroft directed U.S. attorneys across the country to notify Justice Department officials in Washington whenever a federal judge imposes a sentence less than that recommended by federal guidelines. The memo says that the public and victims of crime expect that "penalties established by law for specific crimes will be sought and imposed."
The memo came little more than a month after Deputy Attorney General Larry Thompson stopped just short of apologizing to federal judges from Western states meeting on Kauai for backing a congressional proposal to strip them of their authority to order sentences softer than the guidelines. A version of the amendment, limited to those convicted of sex crimes against children, was enacted in April. Thompson notified the department last week of his resignation at the end of this month.
The sentencing guidelines are set by a commission created by Congress in 1984, essentially rendering as useless the maximum limits that accompany the myriad federal crimes. The guidelines use numerous measuring sticks to reach the parameters for sentencing in each case. Congress also did away with parole, requiring convicts to serve nearly all of their imposed sentences.
The U.S. Supreme Court authorized downward departures from the guidelines in 1996 in upholding a judge's 30-month sentence of two police officers convicted in the beating of Rodney King in Los Angeles. The decision overturned a ruling by the 9th U.S. Circuit Court of Appeals that the sentence should have been within the guidelines of 70 to 84 months.
In 2001, federal judges imposed sentences less than guideline limits in 35 percent of cases examined. Of those, nearly half followed plea agreements, such as the Hawaii fraud case of investor Sukamto Sia, or defendants' "substantial assistance" to prosecutors.
In the King case, Justice Anthony M. Kennedy wrote that the sentencing judge traditionally and properly considers "every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and punishment."
In his memo, Ashcroft quoted a May 5 speech by Chief Justice William Rehnquist saying that it is up to Congress to decide sentencing policy. The memo neglected to mention that the conservative Rehnquist said in the same speech that gathering information on sentencing practices "could amount to an unwarranted and ill-considered effort to intimidate individual judges."