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Attorney General John Ashcroft sent a strong signal to federal prosecutors last week that the Justice Department will not tolerate leniency toward criminals. But the attorney general’s ostensibly tough-on-crime guidelines actually carve out a large exception for programs in which prosecutors systematically trade lighter sentences for speedy guilty pleas. While clamping down broadly on prosecutorial discretion in other areas, the new DOJ directive formally sanctions so-called fast-track programs for the first time to address “exceptional local circumstances.” Since the mid-1990s, federal prosecutors in border states have used fast-track programs to handle massive numbers of immigration and drug trafficking cases. The programs typically offer defendants a reduced sentence in exchange for entering a boilerplate plea agreement within days or weeks of indictment. The aim is to process cases swiftly and help prevent backlogs in court dockets. In 2001, approximately 5,000 cases — nearly 10 percent of the federal courts’ criminal caseload — were resolved through fast-track efforts in Arizona, California, New Mexico, and Texas. Those cases resulted in significantly lighter sentences than similar cases in other parts of the country. “If you come into this country through the Newark airport, you will be treated differently than someone who sneaks across the border in the southwest United States,” concedes Criminal Division lawyer Eric Jaso, the Justice Department’s representative to the U.S. Sentencing Commission. “It’s a necessary exception to the general rule that similarly situated individuals should be treated similarly.” The release of the attorney general’s memo was intended to curb sentence disparities for similar crimes. “The sentence a person is recommended for should be determined based on the objective facts and not what prosecutor they happened to draw,” says Associate Deputy Attorney General Daniel Collins. But some see the fast-track exception as a contradiction to Main Justice’s get-tough approach. “The gist of the AG’s memo is, ‘We hate downward departures because they promote disparities in sentencing,’” says a former staffer at the Sentencing Commission. “‘But if it’s something that helps us — like fast track — we don’t seem to be bothered by disparity.’” What’s more, some former prosecutors say the stringent new standards for plea bargaining may lead more districts to create fast-track programs as a way of managing crushing caseloads. “If the rationale for fast-track programs is that more efficient law enforcement results, well, that same argument can extend to virtually any kind of offense,” says Michael Horowitz, a member of the Sentencing Commission and a partner in the D.C. office of Cadwalader, Wickersham & Taft. University of Indiana law professor Frank Bowman says the Justice Department has “let the camel’s nose under the tent.” “With fast-track programs, your sentence depends not on what you really did, but on the administrative needs of the government and the court. … It’s about getting a skillion cases through the system as fast as possible,” says Bowman. “Once that becomes legitimate, it’s more difficult to say no for other types of crimes.” Carolyn Dineen King, who chairs the executive committee of the U.S. Judicial Conference, acknowledged the impact of fast-track programs at a press briefing last week. “We arrest 1.6 million people each year on the Southwest border, and we prosecute very few of them. Most of them we send back across the border,” said King, who is chief judge of the 5th U.S. Circuit Court of Appeals. “But even so, the fast-track programs are essential if we want to prosecute any of them.” BORDER STATE FOCUS According to the Justice Department, as many as one-third of the 94 U.S. Attorney’s Offices nationwide currently employ some type of program offering certain categories of defendants either reduced charges or reduced sentences in exchange for guilty pleas and expedited court proceedings. The largest programs target immigration offenders in districts along the Southwest border, though some U.S. Attorney’s Offices apply similar practices to defendants charged with low-level drug offenses and financial crimes. For years, the DOJ has debated the legitimacy of such programs and resisted officially approving their use. The Protect Act, backed by the Bush administration and passed by Congress earlier this year, forced the issue by requiring all fast-track programs to be authorized by the attorney general. The act also requires the Sentencing Commission to create by Oct. 27 a specific category of downward departures that will apply to defendants who enter plea bargains under approved fast-track programs. In response to the legislation, the Justice Department released principles on Sept. 22 for implementing fast-track prosecution programs. The memo was sent out to U.S. Attorneys, along with the new DOJ policy related to charging criminal offenses and plea bargaining. According to the memo, in order to qualify for approval, a fast-track program must address a “specific class of cases … that are highly repetitive and present substantially similar fact scenarios.” The guidelines do not limit fast-track programs to border-related crimes, but note that they cannot be used to prosecute serious, violent offenses such as murder, manslaughter, kidnapping, arson, or robbery. “It really depends on whether a U.S. Attorney can make a compelling case it’s needed,” says Jaso, the Main Justice lawyer. “I’m sure that the standard will be pretty stringent.” Jaso adds that Justice Department officials intend to use the review process to standardize fast-track programs on the border so that procedures are similar across jurisdictions. “It doesn’t seem there was any effort at Main Justice to coordinate fast-track programs. That’s been something of a concern,” he says. “We recognize border districts need to be treated differently due to the sheer number of cases. … At the same time, we’re mindful of our more general duty to minimize the amount of disparity in the way people are treated in different districts.” PEOPLE-MOVERS To prosecutors, the appeal of fast-track programs is obvious: more offenders processed at less expense to the government. In the Southern District of California, which includes San Diego, a fast-track program has been in place since 1994 to handle criminal aliens re-entering the United States illegally after previous deportations. Between 1994 and 2001, the number of criminal alien cases prosecuted annually shot up from roughly 300 to 1,800. Such defendants would normally be eligible for more than six years in prison. However, under the fast-track program, defendants can receive an automatic sentence of 30 months in exchange for pleading guilty to lesser charges within 60 days, waiving indictment, filing no motions, agreeing to immediate sentencing, waiving appeal, and agreeing to removal after completion of their sentence. The district also employs fast-track programs for border cases involving drug trafficking and alien smuggling. Testifying before the Sentencing Commission last week, Chief Judge Marilyn Huff of the Southern District of California said local defense attorneys, federal prosecutors and the court all consider the programs “exceptionally successful.” But other fast-track participants complain that the programs mete out assembly-line justice and can allow serious offenders to walk away with light sentences. Since 2001, the Central District of California, which includes Los Angeles, has operated a criminal alien fast-track program similar to San Diego’s. Judge Lourdes Baird told the Sentencing Commission that judges in her district have no power to intercede when a case warrants stiffer sentencing. “Frankly, I don’t like fast track,” Baird said. “I’m never satisfied I’m doing the right thing.” Maria Stratton, chief federal public defender in Los Angeles, also expressed concerns to the commission. “We’ve had clients prosecuted who ended up being U.S. citizens and didn’t even know it,” Stratton said. “For a defense attorney, it is very disturbing to get the feeling you’re just processing people.” Stratton noted her view that the district’s fast-track program “contradicts the concept of uniformity of sentencing based on similarly situated defendants.” “Those defendants that should get more than 30 months get 30 months,” she said. “Those defendants that should get less than 30 months get 30 months.”

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