Pubdate: Mon, 18 Aug 2003
Source: News & Observer (NC)
Copyright: 2003 The News and Observer Publishing Company
Contact:  http://www.news-observer.com/
Details: http://www.mapinc.org/media/304

ASHCROFT'S LIST

Some federal judges, even conservatives, decry excessive prison sentences. 
So why is the attorney general cracking the whip?

He's making a list, checking it twice, gonna find out who's naughty or 
nice. No, it's not Santa Claus but U.S. Attorney General John Ashcroft who 
intends to take careful note of the conduct of federal judges in sentencing 
defendants. Ashcroft has directed federal prosecutors to report judges who 
make "downward departures" from federal sentencing guidelines when the 
reductions are not tied to a defendant's cooperation on the case. The memo 
also instructs prosecutors to start appealing the guideline-departing 
sentences in larger numbers, which could hardly be worse news for federal 
appellate courts. Ashcroft's potential blacklist extends a power grab. It 
poses a threat to responsible sentencing and to the federal judiciary's 
independence as well.

The Justice Department's grab began when it championed a legislative 
amendment, which Congress adopted in April, that makes it easier for 
appeals courts to lengthen sentences that are shorter than in federal 
guidelines. The Feeney amendment, as The Wall Street Journal reported, put 
judges on notice that they not only would be challenged on such sentences 
but also reported to Congress for handing them out. Further, notes Indiana 
University law professor Frank Bowman, Feeney has essentially yanked the 
teeth of the U.S. Sentencing Commission.

Chief Justice William Rehnquist is another one who weighed in. Here is a 
conservative Republican appointee, hardly soft on crime, who warned that 
the Feeney amendment would "seriously impair the ability of the courts to 
impose just and responsible...sentences." Indeed, judges' independence is 
under threat from both the Justice Department and the House Judiciary 
Committee, which would pump even more muscle into the sentencing guidelines.

Speaking last week to the American Bar Association, Supreme Court Justice 
Anthony Kennedy, a Reagan appointee, added to criticism he had voiced in 
April about the practice of setting mandatory minimum sentences for some 
federal crimes. Although Kennedy did not address Ashcroft's recent 
directive specifically, he told the ABA, "Our resources are misspent, our 
punishments too severe, our sentences too long.... In all too many cases, 
mandatory minimum sentences are unjust."

Kennedy's views are not those of a jurist who thinks there's no need for 
federal sentencing guidelines. Over the past 15 years there has been some 
merit in providing judges a range of possible punishments for most cases, 
thereby removing some of the disparities in terms different judges impose 
for the same crime.

But Kennedy, like so many other judges, is hardly unaware of the four-fold 
increase in the population of the federal prisons since 1987 -- more than 
half of it representing drug offenders. Prison terms have become 
considerably longer than before the guidelines system was adopted.

As Kennedy suggests, the guidelines -- mandatory minimums in particular -- 
should be revised downward. But Ashcroft and the Justice Department team he 
has built are intent on guidelines stricter than those many federal judges 
already view as onerous. Surely U.S. District Judge John S. Martin Jr. of 
Manhattan, who resigned his seat in June, expressed the feelings of many of 
his colleagues when he spoke of increasingly limited discretion in sentencing.

"The Justice Department," said Martin, "is telling us that every defendant 
should be treated in the same way, that there should be no flexibility to 
deal with individuals." And the best name for that, perhaps, is the John 
Ashcroft way.
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