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It’s not my habit to defend John Ashcroft. But lately, I’ve almost been tempted (emphasize almost). The attorney general has been blasted for a memo sent out in late July that calls for U.S. attorneys to report to the Justice Department all criminal cases in which federal trial judges impose less stringent sentences “over the objection of the Government.” As a New York Times editorial (which sums up the prevailing attitude pretty well) puts it: “Mr. Ashcroft has ordered federal prosecutors to start collecting information on federal judges. . . . Critics are right when they say that this has the potential to create a ‘blacklist’ of judges who could then be subjected to intimidation.” Or, to put it slightly differently, there’s a witch hunt for judges, and Ashcroft is leading the charge. In fact, neither of those two claims is totally true. The situation is actually worse than if they were. THE REAL TARGETS First, take the judges. Does Ashcroft have the power to intimidate them? Sure. This guy with his lists is like Santa’s evil twin: He’s not interested in who’s nice, and he’s not checking anything twice. Even judges probably don’t want their names put on a list by the same people deciding which of our fellow citizens are “enemy combatants.” But attempts to pressure judges are nothing new. Way back when, in The Federalist Papers, Alexander Hamilton warned that the judiciary is the weakest branch of government, in “continual jeopardy of being overpowered, awed or influenced by its coordinate branches.” Nice thing about the Framers is that they often recognized potential flaws in their plan — and fixed them. And the solution for this one was life tenure for federal judges, which the Constitution guarantees. As Hamilton continued: “[N]othing can contribute so much to [the judiciary's] firmness and independence, as permanency in office.” So Ashcroft can write down names until his hand falls off. He can’t control sitting federal judges. On the other hand, we don’t call him General Ashcroft for nothing. He might have no power over the judiciary, but he most definitely shouts marching orders to his own troops. And that’s exactly what his July memo does. The memo’s bottom line is that, in nine different circumstances, prosecutors must report “adverse” sentencing decisions to Main Justice. And judging by the memo’s language, the attorney general is almost exasperated with his prosecutors for seemingly being soft on sentencing. Consider this spine-stiffener: “Prosecutors’ actions and recommendations with respect to sentencings must in all respects be consistent with the relevant facts and the applicable law.” And this: “A prosecutor may not fail to bring readily provable facts about relevant conduct to the court’s attention.” And this: “In negotiating plea agreements that address sentencing issues, federal prosecutors may not ‘fact bargain,’ or be party to any plea agreement that results in the sentencing court having less than a full understanding of all readily provable facts relevant to sentencing.” And finally: “Department attorneys also have an affirmative obligation to oppose any sentencing adjustments . . . that are not supported by the facts and the law.” Ashcroft’s memo shows an attitude toward his troops that could be summed up as “Don’t trust, but verify.” In the past, individual U.S. attorneys’ offices initiated the decisions on which adverse sentencing decisions to appeal. Now, the memo tells prosecutors that Main Justice will make the call on whether to appeal sentences that undercut their recommendation. In the meantime, U.S. attorneys’ offices are directed to file notices of appeal for all adverse sentencing decisions. So it seems that Ashcroft’s memo is aimed at least as much at his own lawyers as at the judges. U.S. attorneys might have their own political power base outside Justice (for instance, with the senators who recommended them and the president who appointed them), but they’re not exactly an anarchistic group. They’re not inclined in the first place to do anything that ignores “the facts and the law.” Telling them not to sit by and allow sentence reductions that apparently do that can be seen only as a message that they should be extra harsh in pushing for stiff sentences — and a message about who’s boss. (That said, the memo also makes clear that the two types of sentencing reductions that prosecutors most often support, to reward substantial assistance to the government and to “fast-track” certain classes of cases, need not be reported to Main Justice.) This pressure to be tough matters because, to the extent that anyone holds the cards on jail time, it’s the prosecutors. Judges, who used to exercise discretion in sentencing, have increasingly had their hands tied by the federal sentencing guidelines and mandatory minimums. But now, with Ashcroft banging the drums for prosecutors not to go soft, even they are losing the power to take circumstances into account. The result might be that no one in the criminal justice system is trying to tailor the punishment to the crime. JUST FOLLOWING ORDERS And this brings up the second point from the prevailing wisdom: that it’s Ashcroft and the Justice Department that are off on a renegade rampage against the judges and prosecutors. Of course, they are on a rampage, but it’s not renegade. It’s the law, duly passed by Congress and signed by the president. As Ashcroft trumpets in the introduction to his memo, he’s writing as a result of a law passed earlier this year, known as the Protect Act. That statute specifies that there be a report from the attorney general “to ensure that Department of Justice attorneys oppose sentencing adjustments, including downward departures, that are not supported by law and facts,” and that “Department of Justice attorneys promptly notify the designated Department of Justice component in Washington concerning such adverse sentencing decisions.” Sound familiar? Of course, this doesn’t get Ashcroft off the hook completely. Justice loudly supported passage of the Protect Act, and might even have had a hand in crafting it. But Justice didn’t turn that bill into law — Congress and the president did. Ashcroft is definitely an accomplice in helping dupe lawmakers into “fixing” a problem of lenient sentencing that doesn’t exist (in 2001, it was the prosecutors who asked for 79 percent of the downward departures that the judges granted). But Congress and the president are guilty for pulling the trigger. By the way, Congress is on the verge of considering another bill that Ashcroft is hyping on his current 10-city tour. It’s the modestly named Victory Act (that’s short for Vital Interdiction of Criminal Terrorist Organizations Act). Like the Protect Act and the sentencing guidelines, it will further limit judges’ discretion in sentencing. Do you want to blame Ashcroft for it later, or stop Congress now before the lawmakers strike again? Evan P. Schultz is associate opinion editor at Legal Times. His column, “Controversies & Cases,” appears regularly. He can be reached at [email protected].

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