Ashcroft scrutinizes sentencing decisions

Pioneer Press ^ | 08/08/03 | RUBÉN ROSARIO

[bedolido]

The Justice Department is ordering federal prosecutors here and elsewhere to report federal judges who impose lighter sentences than recommended — which a leading Minnesota jurist and other critics say will have a devastating impact on judicial independence.

"This will have a chilling and intimidating effect on judges, and this is why I no longer draw criminal cases,'' said Paul Magnuson, a senior federal trial judge in Minnesota who now handles mostly civil cases. "I predict that the number of departures by federal judges from sentencing mandates will fall to virtually zero.''

The July 28 memo from Attorney General John Ashcroft directs U.S. attorneys nationwide to promptly report to Justice Department headquarters when a sentence is a "downward departure" from guidelines and not part of a plea agreement in exchange for cooperation.

"The Department of Justice has a solemn obligation to ensure that laws concerning criminal sentencing are faithfully, fairly and consistently enforced," Ashcroft wrote.

Under previous policy, prosecutors only reported to the Justice Department those cases they wanted to appeal. The directive now essentially transfers that decision to Justice Department lawyers in Washington.

The change threatens to increase such appeals significantly. In 2001, about 35 percent of federal sentences fell below recommended guidelines, according to the U.S. Sentencing Commission.

The Justice Department appealed just 19 of the more than 11,000 ''downward departure'' decisions. About half involved "substantial assistance'' cases or plea bargains in which federal prosecutors recommended lighter sentences because the criminal defendants cooperated in other investigations.

Minnesota U.S. Attorney Tom Heffelfinger supports the directive and said Ashcroft issued it after consultation with field office prosecutors such as himself.

"We have been concerned about a significant increase in recent years of departures involving nonsubstantial assistance cases,'' he said. "I am sensitive to judges who want to be just, but I am also sensitive that part of the Justice Department's job is to ensure consistency and uniformity in sentencing. That's why we have guidelines.''

The policy shift, which comes on the heels of legislation this year directing federal jurists to abide by sentencing guidelines in certain criminal cases, has unleashed a torrent of criticism in political and legal circles.

Sen. Edward Kennedy, D-Mass., said the memo was tantamount to blacklisting judges, and he accused Ashcroft of engaging in an "ongoing attack on judicial independence.''

B. Todd Jones, Heffelfinger's predecessor as Minnesota's chief federal prosecutor, agrees.

"No question this is an unfair assault on the judiciary that is driven by politics,'' said Jones, now a private attorney with the Minneapolis-based Robins, Kaplan, Miller & Ciresi law firm.

Jones also questioned the political mechanisms behind the legislative change, which was added as a rider to "Amber Alert'' legislation targeting child kidnappers and molesters.

"This is a war on the judicial branch, the one place where individual justice should be done,'' said Jones. "This tells judges that they'd better watch their step, and gives 20-something prosecutors more sentencing powers.''

Victoria Toensing, a Washington-based attorney, former prosecutor and assistant attorney general under President Ronald Reagan, called the memo "a frightening attempt to scare the judges' sentencing process.''

Toensing also represents James Rosenbaum, an outspoken Minnesota federal judge who, like Magnuson and a small number of other jurists across the nation, has publicly criticized the mandatory minimum drug laws that make up roughly half of all federal criminal cases.

Rosenbaum was threatened with a congressional subpoena for what Republican legislators described as misleading statements he made at a hearing last year on sentencing laws. Rosenbaum cited examples of unnecessarily long sentence recommendations for minor drug defendants, but he apparently failed to add that judges eventually departed from the guidelines in the cases.

Democrats characterized an attempt by a House judiciary committee to subpoena details of all drug-related cases handled by Rosenbaum since 1999 as a political vendetta.

There has been no decision, but such a subpoena would be unprecedented for a sitting judge.

Magnuson contends the low number of appeals is an indication that field prosecutors are relatively satisfied with the way federal judges routinely handle cases. He points to the Rosenbaum affair as confirmation that there's a move afoot by the executive branch to strip judges of discretionary authority.

"It certainly looks like a witch hunt, doesn't it?'' he said.

[Bikers4Bush]

Good, these judges should not be allowed to circumvent the law.

[At _War_With_Liberals]

The Justice Department is ordering federal prosecutors here and elsewhere to report federal judges who impose lighter sentences than recommended — which a leading Minnesota jurist and other critics say will have a devastating impact on judicial independence. "



How dare anyone ask for accountability and responsibility from Solomon? Who do they think they are.

In the real world, employees report their actions to their superiors, ESPECIALLY if they break rules and company policy while making decisions.

How does merely taking responsibility and reporting facts hurt the process. Would not hiding these incidents (secrecy) hurt the average American overall?

[John Beresford Tipton]

"employees report their actions to their superiors"

Perhaps you think that judges are employees of the DOJ?

[HurkinMcGurkin]

The Justice Department is ordering federal prosecutors here and elsewhere to report federal judges who impose lighter sentences than recommended

Funny, but when did the word "recommend" become synonomous with "require"?

[pepsi_junkie]

Intersting development. I for one think the drug sentencing guideline are ridiculous because if you are a kingpin you plea down to nothing but the small fries with no quid pro quo to offer get massive time. Seems upside down to me.

On the other hand, Ted Kennedy screaming about the sanctity of judicial independance is ridiculous too. Our government specifically is designed to have checks and balances, and to not monitor what is done by the other branches is frankly an abuse of power and derelection of duty.

[pepsi_junkie]

Funny, but when did the word "recommend" become synonomous with "require"?

When did reporting what happened in a trial become undue pressure on a judge? All the DOJ can do is appeal, not rebuke or remove judges. If a judge is ashamed of his own record (a matter of public record) or in fear that his rulings cannot be sustained under a reasonable appeal, maybe he should reconsider his actions.

[At _War_With_Liberals]

"Sen. Edward Kennedy, D-Mass., said the memo was tantamount to blacklisting judges, and he accused Ashcroft of engaging in an "ongoing attack on judicial independence.''


Here we go again. Ashcroft does his job by asking for judicial responsibility because judges are usurping power...Leftists attack viciously and call all repubs conservative Nazis seeking to destroy American freedom and individual rights.

Repubs will now hide (let alone point out the fact that dems are the fascists), leaving Ashcroft and bush to take the beating on the chin. Since there will only be the dem attack publicized, a good majority watching network news after work will be swayed against Nazi conservatives.

If these exercises of leftist power and propaganda continue with impunity, watch republican polling numbers continue to Fall.

The republicans need a far right faction to counter the far left and take pressue off of bush and move the agenda right. It is the only solution.

[John Beresford Tipton]

"The republicans need a far right faction.."

Mr. Mussolini, to the white courtesy phone!

[At _War_With_Liberals]

Good point, counselor. However, there still must be oversight. How does transparency destroy the system?

[RockandRollResurrection]

Good, I hope the judges keep on refusing to do the Feds dirty work for them. Like the recent decision where a judge ordered the cops to give back the medical marijuana they had seized illegally, fine judges like these know when the power hungry socialists like Ashcroft have gone too far and have a power to correct that problem. Ashcroft's whining about it seems just like that: whining. Why isn't he out fighting terrorists instead of wetting his pants worrying about whether Johnny Potseed got the "recommended" 10 years for smoking a joint? Doesn't he have a REAL JOB he should be doing?

[John Beresford Tipton]

This is not really about transparency. It is rather an attempt to make judges subordinate to local prosecutors. They try to do this by making the decision of the local US attorney on what crimes to charge, not the trial by jury nor the sentencing by the judge, into the key factor in the judicial process. This is about increasing the leverage that the local US Attorney has over suspects/defendants before there is even a trial. Note that it was the DOJ who came up with the Feeney amendment, "Mr. Feeney himself says he was simply the "messenger" of the amendment bearing his name, which was drafted by two Justice Department officials. WTF: The Congress, "our representatives" are merely the "Messengers" of Ashcroft????? Was that flushing sound "Our" Constitution going down the Crapper? Most criminal cases end in a plea bargain. So to extract the maximum number of convictions it is in the local prosecutor's interest to "overcharge". Saying "these crimes here total up to 30 years, but if I let you plead guilty to a lesser charge it is only 3 years" have much greater force, on the innocent or the guilty, if he can add "Though the statutes did not have this in mind for 30 years if the jury finds you guilty,Feeney/Ahscroft makes the judge give you the whole 30" increases the extortionate effect. And remember these people have NOT been convicted of anything. When Congress uses words like "reform", "improvement", "technical correction", "equity" they are trying to push bills that often contain none of these qualities, but can be embraced by the ignorant or trusting. There are tens of thousands of criminal provisions on the books. It is up to the US Attorney to use good judgment and exercise discretion in deciding what "crimes" to prosecute and what charges to bring. But a US Attorney has the personal goal of making his own record look as good as possible. So there are only two ways a US attorney can be dissuaded from overcharging: 1. the jurors will say, "Life for *that*, give me a freeking break." But jurors are voting in the dark, they do not know what the sentence is for "Count 3 of the indictment". And they are not allowed to be told. That is why we often hear of jurors saying that had they only known what the mandatory sentence was, they never would have voted the way they did. 2. the judge who hears what the case is about, and not merely reads what statute the defendant is charged under will say, "I know what this case is about and the sentence was never meant by the legislature to cover a case like this. This "Reform" by Feeney/ Ashcroft does away with the power of the judge to make those judgments. Hello, isn't "Judge" supposed to be part of the job description"? It greatly increases the power of the prosecutors to either overcharge, or to extort from a possibly innocent defendant a plea to a lesser sentence, so as to avoid draconian penalties if the prosecutor charges him under a bevy of harsh laws not intended to cover the fact pattern. That there are too many such laws and that a prosecutor can pick his victim and then find the law to nail him is well known. Justice Jackson, a former US Attorney General and later Justice of the Supreme court wrote: "With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some sort on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who committed it, it is a question of picking the man, and then searching the law books, or putting investigators to work, to pin some offense on him." Also, this Feeney amendment was tacked on to the Amber Bill. Oh, that it fool 'em,it must be okay, after all "It's for the children." And "Our" president, the "Conservative" George Bush signed this? If the founding fathers came back they would have many worthy asses to put their boots up, including one jogging around Crawford, Texas.

[John Beresford Tipton]

This is not really about transparency.

It is rather an attempt to make judges subordinate to local prosecutors. They try to do this by making the decision of the local US attorney on what crimes to charge, not the trial by jury nor the sentencing by the judge, into the key factor in the judicial process.

This is about increasing the leverage that the local US Attorney has over suspects/defendants before there is even a trial.

Note that it was the DOJ who came up with the Feeney amendment, "Mr. Feeney himself says he was simply the "messenger" of the amendment bearing his name, which was drafted by two Justice Department officials.

WTF:
The Congress, "our representatives" are merely the "Messengers" of Ashcroft?????

Was that flushing sound "Our" Constitution going down the Crapper?

Most criminal cases end in a plea bargain. So to extract the maximum number of convictions it is in the local prosecutor's interest to "overcharge".

Saying "these crimes here total up to 30 years, but if I let you plead guilty to a lesser charge it is only 3 years" have much greater force, on the innocent or the guilty, if he can add "Though the statutes did not have this in mind for 30 years if the jury finds you guilty,Feeney/Ahscroft makes the judge give you the whole 30" increases the extortionate effect.

And remember these people have *NOT* been convicted of anything.

When Congress uses words like "reform", "improvement", "technical correction", "equity" they are trying to push bills that often contain none of these qualities, but can be embraced by the ignorant or trusting.

There are tens of thousands of criminal provisions on the books. It is up to the US Attorney to use good judgment and exercise discretion in deciding what "crimes" to prosecute and what charges to bring. But a US Attorney has the personal goal of making his own record look as good as possible. So there are only two ways a US attorney can be dissuaded from overcharging:

1. the jurors will say, "Life for *that*, give me a freeking break." But jurors are voting in the dark, they do not know what the sentence is for "Count 3 of the indictment". And they are not allowed to be told. That is why we often hear of jurors saying that had they only known what the mandatory sentence was, they never would have voted the way they did.

2. the judge who hears what the case is about, and not merely reads what statute the defendant is charged under will say, "I know what this case is about and the sentence was never meant by the legislature to cover a case like this.

This "Reform" by Feeney/ Ashcroft does away with the power of the judge to make those judgments. Hello, isn't "Judge" supposed to be part of the job description"?

It greatly increases the power of the prosecutors to either overcharge, or to extort from a possibly innocent defendant a plea to a lesser sentence, so as to avoid draconian penalties if the prosecutor charges him under a bevy of harsh laws not intended to cover the fact pattern.

That there are too many such laws and that a prosecutor can pick his victim and then find the law to nail him is well known. Justice Jackson, a former US Attorney General and later Justice of the Supreme court wrote:

"With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some sort on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who committed it, it is a question of picking the man, and then searching the law books, or putting investigators to work, to pin some offense on him."

Also, this Feeney amendment was tacked on to the Amber Bill. Oh, that it fool 'em,it must be okay, after all "It's for the children."

And "Our" president, the "Conservative" George Bush signed this?

If the founding fathers came back they would have many worthy asses to put their boots up, including one jogging around Crawford, Texas.

[At _War_With_Liberals]

In no way did I call for state control of anything. Quite the opposite. Some people, on the other hand, favor state control and lie about it. Why don't you call the far left movement socialist or communist?

Oh, I forgot, these are noble philosophies. But when I even suggest maintaining the status quo I am a fascist?

[At _War_With_Liberals]

Why not change the federal recommendations instead of judges having to go outside of them?

[bothsidesnow]

I wonder if Ashcroft is going to go back and change the "lighter' sentence given to his nephew on a charge of drug trafficing...hmmmm???do as I say from my higher position you poor old lowly masses. Ashcroft is an a@@.

Lizzie

[John Beresford Tipton]

There are three layers to this:
The statute tells you the max.
The US Sentencing Commission has Sentencing Guidlines which are extraordinarily complex which try to say what the sentence should be for an individual.
Then there are departures up or down from the guidelines which a judge impliments to try to reflect what the case was all about.

Ashcroft/Feeney try to limit the ability of a Judge to make departures, even though the judge is the one who knows what the case was about.

[HurkinMcGurkin]

When Congress uses words like "reform", "improvement", "technical correction", "equity" they are trying to push bills that often contain none of these qualities, but can be embraced by the ignorant or trusting.

Thank you. You couldn't be more correct.

This "Reform" by Feeney/ Ashcroft does away with the power of the judge to make those judgments. Hello, isn't "Judge" supposed to be part of the job description"?

Of course, we know that judges and juries are supposed to be part of the equation, but there are to many statists who want the judiciary to have little or no power and just do what the legislature, or in this case, the DOJ, says.

[John Beresford Tipton]

"many statists who want the judiciary to have little or no power and just do what the legislature, or in this case, the DOJ, says."

But, but, I though such systems were the hallmarks of totalitarian governments such of Herr. Hitler, Comrade Joe, and Comrade Mao.

Surely, you can't mean that an Attorney General appointed, and supervised by George W. Bush, an announced "Conservative" could be of such a mindset??

[HurkinMcGurkin]

Shocking, isn't it?/sarcasm