Pubdate: Thu, 07 Aug 2003
Source: Boston Globe (MA)
Copyright: 2003 Globe Newspaper Company
Author: Edward Walsh and Dan Eggen


ASHINGTON -- Attorney General John Ashcroft has ordered federal prosecutors 
across the country to become more aggressive in reporting to the Justice 
Department cases in which federal judges impose lighter sentences than 
called for in federal sentencing guidelines.

The directive, contained in a July 28 memo to prosecutors 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 could lay the groundwork for the Justice Department to 
appeal many more of those sentencing decisions than it has in the past.

The Ashcroft memo amended a section of the United States Attorneys' Manual 
that previously said that federal prosecutors had to report to the Justice 
Department only sentences that the prosecutors had objected to and wished 
to appeal. In the new directive, prosecutors were told to report all 
so-called ''downward departure'' sentencing decisions that meet certain 

The effect of the change will be to shift most decisions on whether to 
appeal a sentence that is less than called for in the sentencing guidelines 
from federal prosecutors to Justice Department lawyers in Washington.

Ashcroft's critics reacted angrily to the memo, which was first reported by 
the Wall Street Journal. Senator Edward M. Kennedy, Democrat of 
Massachusetts, 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, say the change was needed because 
some judges have become more willing to ignore sentencing guidelines. The 
fact that nearly all departures from the guidelines resulted in more 
lenient sentences further angered Ashcroft and conservative-minded 
attorneys, officials said.

Justice spokesman Mark Corallo said that in the past, federal prosecutors 
in Washington were alerted to problematic sentences on an ''ad hoc'' basis. 
By requiring US 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 

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 standards and made it easier to appeal and overturn ''downward 

Chief Justice William Rehnquist, the American Bar Association, and others 
strongly objected to the amendment. In a letter to Senator Patrick Leahy, 
Democrat of Vermont, Rehnquist said that the measure ''would seriously 
impair the ability of courts to impose just and reasonable sentences.''

According to statistics compiled by the US Sentencing Commission, 35 
percent of the sentences handed down in federal court in fiscal year 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. The Justice Department appealed only 19 of more 
than 11,000 ''downward departure'' sentencing decisions by judges.

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.''
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