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What has John Ashcroft wrought? That’s a question lawyers across the nation are asking after the attorney general’s orders last week to federal prosecutors to bring the highest criminal charges possible so that sentences will be both tough and uniform throughout the country. The action renewed fears in some quarters that he was systematically chipping away at the traditional prerogative of judges to fit the sentence to the crime. Those fears surfaced in July when Ashcroft told prosecutors to report to Washington whenever federal judges make “downward departures” from sentencing guidelines. Others say the new orders requiring line prosecutors to report to Washington could create a judicial “blacklist” used to wage public war against judges deemed too lenient. Some attorneys assert that Ashcroft has simply misunderstood and misinterpreted the sentencing guideline system put into effect 14 years ago. Mark Allenbaugh, a former staff attorney at the U.S. Sentencing Commission now at Washington’s Montenonico, Belcoure & Tazzara, said that the Ashcroft memorandums display a misunderstanding of the role discretion was supposed to play under the sentencing guidelines. He extends that indictment to Congress, since the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT Act), which was signed into law in April, directed Ashcroft to ensure that prosecutors disfavor downward departures and to alert Congress whenever a judge grants one for reasons other than cooperation with the authorities. “Congress has lost faith in the very animal they created 15 years ago,” he said. The idea behind the sentencing guidelines was, Allenbaugh said, to arrive at a “heartland range.” It would do justice to the majority of defendants while giving judges some discretion because a rigid set of rules can’t always capture relevant information. The guidelines spell out aggravating and mitigating factors that allow judges to depart from the heartland. In Allenbaugh’s opinion, Ashcroft and Congress looked at statistics showing a recent increase in downward departures and regional variations in their number and jumped to the conclusion that judges were dispensing mercy in a standardless fashion. Allenbaugh said that downward departures, far from being standardless, empower judges to uphold the spirit of the guidelines when the letter would do them violence. He pointed to a recent case, U.S. v. VanLeer, 270 F. Supp. 2d 1318 (D. Utah 2003), in which a judge gave a downward departure to an ex-con who took back a gun he had entrusted to a friend before entering prison, but only long enough to get rid of it at a pawn shop. Allenbaugh said that the statistical anomalies cited by Ashcroft can have any number of causes, including the failure of the Sentencing Commission to predict accurately where the majority of cases will fall. Regional variations might be explained by the fact that prosecutors in states with fairly lenient sentencing often try to shunt especially egregious crimes into the harsher federal system, he speculated. He believes the solution is to let the commission continue doing what it has been doing for years-gathering statistics and adjusting the guidelines to account for unanticipated trends. A blacklist? Allenbaugh said he is alarmed by the reporting requirements in the July memorandum, which could become a judicial “blacklist” allowing Ashcroft to wage a public opinion war with judges he sees as too lenient. Professor Jonathan Turley of George Washington University Law School likewise said he’s afraid that the paper trail mandated by the Ashcroft memorandums will supply ammunition for a campaign of vilification. “Ashcroft destroys the reputations of judges he doesn’t like,” Turley charged, pointing to the case of Ronnie White. White, then a judge on the Missouri Supreme Court, was appointed by President Bill Clinton to the 8th U.S. Circuit Court of Appeals in 1997. His nomination was rejected by the Senate in 1999, in large part because Ashcroft, then senator from Missouri, asserted that White’s opinions were “pro-criminal and activist, with a slant toward criminals and defendants against prosecutors.” Turley said that Ashcroft’s charges were “ridiculous,” adding that White went on to become chief justice of the Missouri court. Turley does not agree with Allenbaugh on other points, however. He said that the main force behind the increase in downward departures is the dissatisfaction of judges and prosecutors with draconian punishments, mandated both in the guidelines and in mandatory minimum laws, particularly for drug offenses. Daniel Richman, an assistant U.S. attorney in the Southern District of New York from 1987 to 1992 and now a law professor at Fordham University, said that it’s unclear what impact the Ashcroft memorandums will have in practice. He noted that if a prosecutor certifies that a defendant has cooperated, “that takes you right out of the memo and maybe even the guidelines.” He’s not overly troubled by the required paper trail, at least not until it becomes clear whether anyone will pay attention to it. Judges, he said, already leave a paper trail, but “with regard to prosecutors, we don’t have a clear sense of what sort of bargaining may have led up to a charge, except in those extreme cases in which someone is arrested with 30 kilos of cocaine and gets a two-kilo charge.” In that sense, he said, Ashcroft’s latest memorandum can be seen as an extension of the logic of the sentencing guidelines to prosecutors. Young’s e-mail address is [email protected].

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