Wed, 06 Aug 2003 - Wall Street Journal (US)
Author: Laurie P. Cohen and Gary Fields

Ashcroft Intensifies Campaign Against Judges' Soft Sentences

Stepping up the Justice Department's battle with federal judges over sentencing guidelines, Attorney General John Ashcroft has directed government lawyers to report on judges who give out softer sentences and to start appealing those sentences in far higher numbers.

The move, circulated in an internal memo last week, was anticipated under a measure known as the Feeney amendment, adopted by Congress in April to strengthen judges' adherence to new, stricter sentencing guidelines. Many judges, including U.S. Chief Justice William Rehnquist, view the new rules as a further attack on their independence.

"The Justice Department is telling us that every defendant should be treated in the same way, that there should be no flexibility to deal with individuals," says U.S. District Judge John S. Martin Jr. of Manhattan. Judge Martin announced his resignation from the bench in June, citing judges' increasingly limited sentencing discretion.

Judges' criticism of the Justice Department and the Congress has been at a fever pitch since President Bush signed the Feeney amendment into law. The measure makes it easier for appeals courts to lengthen sentences set by judges that are shorter than those in the federal guidelines. It puts federal judges on notice that they'll be challenged on such sentences and be reported to Congress for giving them.

Congress gave the Justice Department, which championed and wrote the legislation, 90 days to come up with a plan to enforce the rules, a deadline that arrived last week. Lawmakers gave the U.S. Sentencing Commission, an independent agency created by Congress in 1987 to create federal sentencing policies and practices, 180 days to formulate its own response.

Mr. Ashcroft's order directing U.S. attorneys to appeal far more "downward departures" by judges -- meaning sentences shorter than the guidelines -- adds fuel to an already bitter dispute between the federal judiciary and the administration.

Mr. Rehnquist has warned that the Feeney amendment will "seriously impair the ability of courts to impose just and responsible sentences." But the Justice Department and members of the House Judiciary Committee believe that judges have been flouting sentencing guidelines for years and that legislation was required to end the practice.

Judges' departures from the guidelines have risen in recent years and vary sharply from state to state.  For example, judges in the Eastern District of New York, which includes Brooklyn, issued sentences shorter than the guidelines in more than 25% of all cases in fiscal 2001, while judges in South Carolina did so in only 2% of all cases. The national rate in fiscal 2001, the last year for which statistics are available, was 18.3%.

"The whole purpose of the [sentencing commission] was to minimize disparity among similarly situated defendants," says Bill Mercer, the Montana U.S. attorney and chairman of Mr.  Ashcroft's advisory committee on sentencing guidelines.

Many judges have voiced dissatisfaction with guidelines they view as onerous, particularly those that establish mandatory minimums for drug sales and possession. The guidelines are widely credited with the four-fold increase in the federal prison population since 1987. More than half of federal inmates are now drug offenders.

While Congress is calling for ever-greater prison sentences for almost all crimes, the trend in the states is going the opposite way. Squeezed by tight budgets, many states have repealed mandatory minimum sentences in the last three years.

Since 1987, Congress has rarely exercised its power to set mandatory minimum sentences for federal crimes -- usually leaving this practice to the U.S. Sentencing Commission, which was created for the purpose. But the Republican majority in Congress, along with the Justice Department, has been increasingly uncomfortable with letting judges exercise discretion without recourse. "Feeney brings the whole Sentencing Commission closer to collapse," says Frank Bowman III, a professor of law at the Indiana University School of Law. "It is being set up as an agency that will do studies of judges who depart from guidelines, rather than as a rational policy-making body."

In February, the Senate considered and unanimously passed a bill focused on enhancing prosecution of child pornographers. The House took up the measure in March, adding a nationwide warning system for abducted children known as "Amber Alert." On March 27, Representative Tom Feeney, a Florida Republican, proposed amending the bill to address what he called "long-standing and increasing problems of downward departures from the Federal Sentencing guidelines."

Members of the Sentencing Commission viewed the Feeney amendment as an end-run around the independent agency, which was never notified about it in advance. "Clearly, you'd like to have had a lot more debate," says Commissioner Michael O'Neill, a criminal law professor at George Mason University.

Mr. Ashcroft said in last week's memo that downward departures should be a "rare occurrence" -- except in cases where prosecutors are recommending them because of the cooperation of the accused.  Prosecutors are themselves responsible for about half of all downward departures from sentencing guidelines. Prosecutors frequently offer crimes carrying lesser sentences in exchange for plea deals in a variety of criminal and immigration cases.

The Justice Department has rarely appealed downward departures issued by federal district judges, especially since the Supreme Court's 1996 Koon decision, which held that appeals courts should defer to lower courts in departure cases.

For fiscal 2001, federal district judges departed downward in 10,026 sentences, about as many as were sought by prosecutors in connection with plea agreements in exchange for cooperation. The Justice Department appealed fewer than 50 of the judges' departures that year.

"We hope there'll be more objections" in cases where judges have departed downward without the agreement of prosecutors and "more cases brought to our attention," said a Justice Department lawyer. Requests for appeal by federal prosecutors must be approved by the Solicitor General's Office.
Judge Martin said so few departures are appealed because "most assistant U.S. attorneys recognize they're appropriate," though they may argue otherwise.

Rep. John Conyers Jr. of Michigan, the Judiciary Committee's senior Democrat, said through a spokesman, "John Ashcroft seems to think Washington, D.C., can better determine a fair sentence than a judge who heard the case or the prosecutor who tried it. The effort by DOJ to compile an 'enemies list' of judges it feels are too lenient is scary to say the least."

The memorandum, signed by Mr. Ashcroft, says department attorneys "have an affirmative obligation to oppose any sentencing adjustments, including downward departures, that are not supported by the facts and the law. This obligation extends to all such improper adjustments, whether requested by the defendant or ...  by the court."

Mr.  Feeney himself says he was simply the "messenger" of the amendment bearing his name, which was drafted by two Justice Department officials, Associate Deputy Attorney General Daniel Collins and Jay Apperson, counsel to the House Judiciary Committee. The committee has tangled with several judges Republicans believe have crossed the line, including U.S. District Judge James Rosenbaum of Minnesota, who the Justice Department says has often imposed sentences below mandatory minimums. House Judiciary Committee members have threatened to subpoena sentencing records from Judge Rosenbaum over the issue.

U.S. District Judge Nancy Gertner of Massachusetts, a state where downward departures exceed the national average, calls the changes brought about by the Feeney amendment "very sad" because of its role in "eliminating a judge's role in checks and balances." She says the Justice Department policies will surely burden appeals courts, which will then make decisions based on "much more limited knowledge" of individual cases than trial judges.

Jess Bravin contributed to this article.