Tue, Sep. 23, 2003 - Knight Ridder Newspapers

Ashcroft Outlines Stricter Rules for Criminal Cases

COURTS:Attorney general tells prosecutors to seek maximum penalties and cut number of plea bargains.

BY Shannon McCaffrey

WASHINGTON - Attorney General John Ashcroft on Monday ordered federal prosecutors to come down harder on criminal defendants, instructing them to seek maximum penalties and to limit the use of plea bargains.

The tough new stance, outlined in a memo distributed to all 93 U.S. attorneys, dramatically reduces prosecutors' discretion in federal criminal cases ranging from drug trafficking to money laundering to terrorism. Under former Attorney General Janet Reno, prosecutors were given greater leeway in determining whether the potential charge fit the crime.

Ashcroft said the shift was designed to create consistency in the nation's criminal justice system.

"Like federal judges, federal prosecutors nationwide have an obligation to be fair, uniform and tough," the attorney general said in a speech Monday in Milwaukee.

Critics accused Ashcroft of adopting an unwieldy one-size-fits-all approach and taking yet another step to consolidate power at the Justice Department headquarters in Washington.

Earlier this year, it was revealed that Ashcroft was intervening in the death penalty decisions of federal prosecutors, ordering them to seek executions in cases where they had decided not to. The Justice Department also has told prosecutors to report on downward departures, in which judges hand down lighter sentences than the rigid federal sentencing guidelines require.

Mary Price, general counsel for the Washington, D.C.-based criminal justice reform group Families Against Mandatory Minimums, called Ashcroft's latest memo "very disturbing."

"Those people on the ground with a flesh-and-blood defendant in front of them are in the best position to know what ought to be done," Price said. "This almost removes human beings from the equation altogether."

Gerald Lefcourt, former president of the National Association of Criminal Defense Lawyers, said the move almost certainly would result in more costly trials and more prisoners in a system that is already overburdened.

"What they are doing is creating an inflexible, unjust system that eliminates all possibility of compassion," Lefcourt said.

Bill Mercer, the U.S. attorney in Montana who sat on the 15-member Attorney General's Advisory Committee, which drew up the changes, said they had the support of federal prosecutors.

"You want uniformity," Mercer said. "You don't want someone's viewpoint or philosophy determining the outcome. What we are after is eliminating disparity from place to place and defendant to defendant when the crime is the same."

The new guidelines contain enough flexibility for unique cases, he said.

The Sentencing Reform Act of 1984 created uniform sentences in which federal judges must take into account the crime and mitigating circumstances in an almost mathematical formula that determines a criminal's prison sentence. A 1989 memo by then-Attorney General Richard Thornburgh, who served under President Bush's father, outlined guidelines that sought similar consistency from prosecutors. Reno reworked those guidelines during her tenure to give local prosecutors more discretion.

Mercer said the Ashcroft memo returned to the "spirit of the Thornburgh directive."

The Ashcroft memo states that "federal prosecutors must charge and pursue the most serious, readily provable offenses that are supported by the facts."

"Charges should not be filed simply to exert leverage to get a plea," the memo said.

Plea bargains may be used only in rare circumstances, such as when a defendant agrees to provide "substantial assistance" to law enforcement officers.

While Ashcroft in his memo invoked the Sentencing Reform Act as a "watershed event in the pursuit of fairness and consistency in the federal criminal justice system" others have been less complimentary.

Supreme Court justices Anthony Kennedy and Stephen Breyer have criticized the rigid sentencing guidelines. Breyer was a member of the U.S. Sentencing Commission that helped write them.