No Mercy in Ashcroft's Brand of Justice

Attorney General John Ashcroft doesn't have enough to do, hunting down terrorists.

With the help of a rollover Congress, he now has a new and bigger club to go after federal judges who impose lighter sentences in criminal cases than he would like.

As a faithful lord high executioner of the administration's much touted "compassionate conservatism," Ashcroft wants to clamp down on those judges.

At issue are the sentencing guidelines laid down by a federal commission that Congress created in 1984. Under pressure from Ashcroft, Congress voted in April to restrict the flexibility of federal judges to depart from the guidelines. The new law also makes it easier for prosecutors to appeal more cases when they don't like the court-imposed prison sentences.

As it stands now, the attorney general must report within 15 days to Congress the identity of any federal judge who deviates from the rules and the reasons why. And the department must report within five days whether it intends to appeal.

The empowered attorney general then issued an order on July 28 to federal prosecutors, directing them to report all "downward departure" sentencing decisions in criminal cases.

Previously, the prosecutors were required to report to the Justice Department only those sentences that they had objected to and wanted to appeal.

The overall effect is to give Ashcroft more control and the final say on whether to appeal a sentence. And it reduces the powers of the prosecutors in the field, the people who know more about the defendant and the circumstances of the case than does anyone in Washington.

It looks to me as if Ashcroft has designed a new program to intimidate federal judges.

Sen. Edward Kennedy, D-Mass., accused Ashcroft of an "ongoing attack on judicial independence" and said he was requiring federal prosecutors to establish a "black list" of judges who diverge from the guidelines.

Department lawyers say the new rules are in the interest of uniformity. But Ashcroft obviously was miffed that some judges weren't handing out the tough sentences that he wanted.

The sentencing commission has statistics showing that 35 percent of the sentences handed down in federal court in the 2001 fiscal year fell below the guidelines. Many of those sentences were the results of plea-bargaining and had the approval of the prosecutors.

Jonathan Turley, a George Washington University law professor, said many judges have denounced the guidelines for producing "unduly long sentences" and hampering the courts' ability to fashion punishments to fit the crimes.

Ashcroft wants judges to treat defendants as "statistics rather than individuals," Turley added. In all fairness, Congress shares the blame for giving him even more power to do so.

In his new order to the prosecutors, Ashcroft cited a May 5 speech by Chief Justice William Rehnquist who acknowledged that it was up to Congress to establish guidelines on sentencing policies.

But Ashcroft conveniently failed to mention that Rehnquist also used the same speech to criticize the sentencing restrictions as "an unwarranted and ill-considered effort to intimidate individual judges in the performance of their official duties."

Rehnquist also complained to Sen. Patrick Leahy, D-Vt., the top Democrat on the Senate Judiciary Committee, that limiting judicial discretion "would seriously impair the ability of courts to impose just and reasonable sentences."

In a recent speech to the ABA convention in San Francisco, Supreme Court Justice Anthony Kennedy, a moderate conservative, criticized mandatory minimum sentencing and said prison terms were too long. He told the lawyers "our resources are misspent, our punishments too severe, our sentences too long."

He branded the guidelines as "not wise, not just."

An even more dramatic protest against the guidelines came from U.S. District Judge John Martin. He quit the bench in Manhattan in June and charged that Congress was attempting "to intimidate judges."

U.S. District Judge Irene Keeley of Clarksburg, W.Va., who heads the ABA's National Conference of Federal Judges, supports the critics of the guidelines.

She said the jurists would continue to "evaluate each sentence on a case-by-case basis." A study of the facts will show there is no evidence that judges have been bending the sentencing rules, she said.

Obviously Ashcroft's sense of justice is not the kind that is touched by the quality of mercy.