Monday, August 11, 2003
Los Angeles Times: Home Edition
Editorial Page: COMMENTARY

Under Ashcroft, Justice is Blind and Handcuffed
His 'blacklist' aims at judges and prosecutors who exercise discretion on sentences.

By:  JONATHAN TURLEY
a law professor at George Washington Law School

In matters of faith and law, Atty. Gen. John Ashcroft generally distrusts the role of discretion — it is uniformity, if not rigidity, that defines his vision. Over the last two years, Ashcroft has radically reshaped the Justice Department, pushing aside suspected moderates and promoting young extremists who will not hesitate in carrying out his orders. He now has turned to the federal courts to compel uniformity, ordering prosecutors, in a July 28 memo, to report any judge who imposes a criminal sentence lighter than what is called for by federal guidelines.

Ashcroft is seeking to prevent judges from tailoring sentences to fit individual crimes. If successful, sentences in the United States would be meted out with all the speed and care involved in calculating a mortgage rate on the Internet. Judges are resisting this robotic approach to sentencing and are fighting to preserve a tradition of judicial discretion that runs to the early days of our country. In a system without such discretion, pleas for mercy or extenuating circumstances would be considered immaterial to justice.

At issue are 1984 guidelines that established a set of mandatory minimum sentences for federal crimes. Both conservative and liberal judges have long denounced these guidelines as imposing unduly long sentences and reducing the ability of courts to fashion punishments that fit particular cases. The sentences are so severe that some judges have resigned rather than impose a 10-year mandatory minimum prison term for first-time drug offenders. Most judges have struggled to work within the guidelines to fashion more just sentences.

For instance, a federal judge may use a "downward departure" from the rules to reduce a sentence if there are mitigating factors, such as cooperation with the government. Such reductions in sentences, which are used in 35% of cases annually, are often supported by prosecutors. According to the American Bar Assn., prosecutors have appealed only 19 of more than 11,000 such sentence reductions. Likewise, some of the nation's most conservative jurists have opposed restrictions on the authority of judges to "depart." Chief Justice William Rehnquist, for example, warned Congress that restrictions "would seriously impair the ability of courts to impose just and reasonable sentences."

It is not only judicial discretion but prosecutorial discretion that Ashcroft is seeking to curtail. He has effectively removed the question of sentencing from the local decisions of prosecutors to his centralized control. The message to both judges and prosecutors is obvious. If a prosecutor favors a reduction in sentencing, he or she will now be identified (with the offending judge) to Ashcroft. Few prosecutors will risk Ashcroft's ire. Instead, they will refuse to deal with the obvious inequities in sentencing and stick to the guidelines. Denounced as a kind of blacklisting, the new policy is particularly troubling because of Ashcroft's history of attacking judges who don't fit his vision of justice. One of the most notorious incidents was addressed in his close confirmation fight.

As a senator from Missouri, Ashcroft blocked the elevation of Missouri state Supreme Court Justice Ronnie White to the federal Court of Appeals. A widely respected African American jurist (he recently was made chief justice of the Missouri Supreme Court), White was considered a natural for the federal court. Ashcroft, however, led a vicious campaign against White's confirmation and labeled the judge as "pro-criminal." In particular, Ashcroft insisted that White was hostile to the death penalty, even though White had voted to uphold 41 out of 59 death sentences that came before him.

Now, Ashcroft believes that federal judges who lower sentences are violating the intent of the federal law. However, the Supreme Court has ruled that such decisions are the very essence of independent judicial review and has held that the sentencing guidelines anticipate such departures. Justice Anthony Kennedy, a conservative on criminal matters, held that this country had a long "tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in human failings that sometimes mitigated, sometimes magnify, the crime and punishment."

Ashcroft would replace this tradition with a system that imposed sentences without variation and without understanding. Indeed, in his memo to U.S. attorneys, Ashcroft quotes Rehnquist as establishing that it is Congress, not the courts, that set sentencing policy. However, Ashcroft misrepresented Rehnquist's comments by omitting Rehnquist's further statement that efforts to gather sentencing records "could amount to an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties."

The country now faces a choice between two visions of justice. Ashcroft wants judges to share his view of defendants as statistics rather than individuals. However, justice is found in the very details that Ashcroft wants to ignore in sentencing. In this system of forced ignorance, justice would be blind not to prejudice but to principle.

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