Pubdate: Fri, 29 Aug 2003 Source: Roanoke Times (VA) Copyright: 2003 Roanoke Times Contact: http://www.roanoke.com/roatimes/ Details: http://www.mapinc.org/media/368 Author: John Wagner Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing) Referenced: http://www.mapinc.org/drugnews/v03/n1216/a05.html?1119 ASHCROFT IS JUST CARRYING OUT THE LAW Editorial Criticism Was Deceptive CUTTING through your proselytizing editorial of Aug. 12, "John Ashcroft's black-robed blacklist," and going to the chase, two glaring errors appear. First, your analogy of Attorney General Ashcroft to Sen. Joe McCarthy, and second, your allegation that Ashcroft, by requiring U.S. attorneys to report "downward departures" to the Department of Justice, is engaged in an attempt to "intimidate and punish" federal district judges. First, McCarthy used no "blacklist to intimidate and punish Americans with certain political beliefs." McCarthy was a member of the Senate Permanent Subcommittee on Investigations and, as such, was charged with investigating the federal government. His role in that subcommittee was exclusively the investigation of loyalty risks working for or with the federal government, and the subjects of his investigation were federal officials whose duty it was to remove those loyalty risks from sensitive government positions, and who were allegedly derelict in that duty. The "blacklists" were unrelated to McCarthy, but attributable to the House (of Representatives, not the Senate) Un-American Activities Committee and its questioning of members of the Hollywood set, the Hollywood Ten in 1947, as to their particular associations with the Communist Party. There is not now, nor has there ever been found, a connection between McCarthy, whose first year in the Senate was 1947, and HUAC. Second, as to your editorial statement that Ashcroft requires U.S. attorneys "to collect information on judges who sometimes 'depart downward' from mandatory sentencing guidelines set up by Congress, and to report that information to Washington," you did not tell "the rest of the story." To understand the concept of "downward departure," one must first understand something about the Federal Sentencing Guidelines. When it passed the Sentencing Reform Act of 1984, the Congress provided for the development of sentencing guidelines that would meet the basic purposes of criminal punishment: deterrence, incapacitation, just punishment and rehabilitation. One major objective was to seek reasonable uniformity in sentencing across the breadth and width of this great land. The authority to review and rationalize the sentencing process, as well as to draft the guidelines, was given to the U.S. Sentencing Commission, an independent agency in the judicial branch. After extensive hearings, deliberations and consideration of substantial public comment, the commission submitted the initial guidelines to the Congress in April 1987. After a period of congressional review, the guidelines took effect in November 1987, and have been amended annually since. The guidelines have the force and effect of law. They take into consideration several factors to come up with a sentencing range, usually expressed in a term of months with a floor and a ceiling. There are provisions for sentencing outside the range if the court finds that circumstances exist that were not taken into account by the commission when it formulated the guidelines. Those circumstances can be either aggravating (resulting in an "upward departure," increasing the range allowed for imprisonment), or mitigating (resulting in a downward departure, decreasing the range). One of the mitigating factors considered by the court is whether the defendant has provided "substantial assistance" to law enforcement. Usually, a motion by the government to recommend a departure downward is a promise made by the government and contained in a plea agreement with the defendant, also signed by the defense counsel, in which a defendant agrees to plead guilty to one or more charges. At sentencing, if the defendant has fulfilled his promise to substantially assist the government, the government's attorney moves the court for a downward departure. In your editorial, you failed to report that, under the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, Congress has mandated that the Justice Department report every case in which there is a downward departure (unless that departure is for substantial assistance to law enforcement), unless, not later than 90 days after the date of enactment of the PROTECT Act, the department submits to Congress a detailed statement of policies concerning downward departures that it has adopted in response to the PROTECT Act. Chief Justice William Rehnquist told the Federal Judges Association Board of Directors meeting on May 5, "Congress has recently indicated rather strongly, by the Feeney Amendment, that it believes there have been too many downward departures from the sentencing guidelines. ... Such a decision is for Congress, just as the enactment of the sentencing guidelines nearly 20 years ago was." So, Ashcroft is not engaged in some covert, nefarious effort to undermine the federal judiciary, as you suggest in your editorial. The entire process is aboveboard, with the guidelines being a product of the legislative and the judicial branches of our government, and U.S. attorneys following the law by reporting downward departures up their chain of command to the Justice Department. Federal judges are subject to appellate courts' scrutiny; if they have applied the guidelines properly, their departures will be upheld. So much for Ashcroft striking fear into the federal judiciary. Is it too much to ask of you to present the entire truth to your readers, rather than take sides and present a skewed editorial based on the deceptive presentation of half-truths, misrepresentations and omissions? JOHN WAGNER of Bent Mountain, now retired, was an assistant U.S. attorney in Houston. - --- MAP posted-by: Jay Bergstrom