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Attorney General John Ashcroft has directed federal prosecutors not to charge defendants with an eye toward plea bargains and, with few exceptions, pursue the toughest sentences possible under the federal sentencing guidelines. The U.S Department of Justice released a memo that Ashcroft has sent to all federal prosecutors saying they “must charge and pursue the most serious, readily provable offenses that are supported by the facts.” He said the consistency demanded of federal judges in sentencing must be matched by a consistency in charging decisions and plea bargaining by prosecutors nationwide. While that policy is par for the course, defense lawyers and former federal prosecutors say, the attorney general’s memo tightens the exceptions in several areas, limiting the discretion of line prosecutors to make independent decisions on charging, pursue plea bargains and acquiesce in downward departures under the guidelines. “What is new is the curtailing of the ability of local prosecutors to plead out cases based on anything other than the most serious charge,” said Alan Vinegrad, a partner in Covington & Burling and the former U.S. Attorney for the Eastern District of New York. Missing from the new policy is any reference to old language in the U.S. Attorney’s Manual stating that “a faithful and honest application of the sentencing guidelines is not incompatible with selecting charges or entering into plea agreements on the basis of an individualized assessment of the extent to which particular charges fit the specific circumstances of the case.” But Ashcroft said Monday it that was imperative that cases are prosecuted in an equally aggressive manner throughout the country. “It’s important that when the law is broken in Milwaukee, it’s attended by the same consequences as when it’s broken in Denver,” Ashcroft said when asked about the policy after a speech Monday in Milwaukee. The memo states that charges may not be “readily provable” if the prosecutor has a good faith belief that legal or evidentiary problems minimize the chances for conviction. “Thus, charges should not be filed simply to exert leverage to induce a plea,” it states. Prosecutors may decline to charge the most serious crime where the sentence would be unaffected under the guidelines, the charges are brought as part of an attorney general-authorized “fast-track” disposition program, problems with witnesses lead to a “post-indictment reassessment,” or the defendant provides substantial assistance. A catch-all exception is carved out for “other exceptional circumstances,” where a single case might place an extraordinary burden on a local U.S Attorney’s Office or reduce the “total number of cases disposed of by the office.” The attorney general’s memo also said statutory sentencing enhancements should be pursued aggressively, and that line prosecutors may refrain from seeking them only with the approval of a superior, “but only in the context of a plea agreement,” and subject to other requirements. That approval also must be written or otherwise documented. The attorney general’s memo also requires prosecutors to make sentencing recommendations that “honestly reflect the totality of the seriousness of the defendant’s conduct.” DOWNWARD DEPARTURES Line prosecutors must also get the approval of their superiors to “request or accede” to a downward departure under the guidelines, and only where the defendant has provided substantial assistance or a fast-track program is in place. As for other downward departures, the memo states, they should be a “rare occurrence,” and prosecutors “must not agree to stand silent” with respect to them, particularly if they violate the specific restrictions in the PROTECT Act, legislation passed earlier this year by Congress that includes the Feeney Amendment’s controversial provisions for limiting judicial discretion in sentencing under the guidelines. “I do not fault the attorney general for seeking to have prosecutors in his office be as aggressive as the attorney general believes correct,” said Gerald Walpin of KMZ Rosenman. “The problem is inherent in the sentencing guidelines, which have taken away from judges the discretion to determine what a sentence should be.” White-collar defense attorney Robert Heim of Meyers & Heim said the memo represents both “a get tough on crime program,” and a shift in power to Washington. “What it changes from the current policy is it reduces the level of discretion that U.S. Attorneys and their assistants have in cases by trying to make the charging decisions more uniform throughout the country,” Heim said. “This also represents the headquarters of the Justice Department trying to take more control over how criminal cases are prosecuted and reduce the control prosecutors have.” The Associated Press contributed to this report.

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