Friday, August 08, 2003


Another controversy is brewing around Ashcroft, this time over a so-called "blacklist" of federal judges who are "too lenient" in their sentencing. A quote from the Washington Post:
Attorney General John D. Ashcroft has ordered U.S. attorneys across the country to become much more aggressive in reporting to the Justice Department cases in which federal judges impose lighter sentences than called for in sentencing guidelines. * * * The more extensive reporting will lay the groundwork for the Justice Department to appeal many more of those sentencing decisions than it has.

The Ashcroft memo amended a section of the United States Attorneys' Manual that previously said federal prosecutors had to report to the department only those sentences that prosecutors had objected to and wanted to appeal. In the new directive, U.S. attorneys were told to report all "downward departure" sentencing decisions that meet certain criteria in nine categories.

* * *
Ashcroft's critics reacted angrily to the memo, which was first reported by the Wall Street Journal. Sen. Edward M. Kennedy (D-Mass.) accused Ashcroft of engaging in an "ongoing attack on judicial independence" and of requiring federal prosecutors "to participate in the establishment of a blacklist of judges who impose lesser sentences than those recommended by the sentencing guidelines."
Kennedy's charge is silly on its face. Nothing in Ashcroft's memorandum suggests that anyone anywhere is going to keep a "list" of judges whose sentencing decisions are erroneous. Even if Ashcroft set up some sort of "blacklist" of federal judges he didn't like, I don't see how it could possibly have any effect. Prosecutions have to be brought in appropriate venues in the first instance, and judges are then randomly assigned.

Moreover, Ashcroft's decision has literally nothing to do with "judicial independence." From the article, it appears that he is merely trying to make sure that DOJ appeals sentences that fail to meet the Sentencing Guidelines. And DOJ has every right to appeal in those cases. I'm not sure how anyone could reasonably conclude that asking life-tenured judges on a U.S. Court of Appeals to reverse an erroneous decision by a life-tenured district judge is an attack on "judicial independence."

Since I knew that Kennedy protege Stephen Breyer had been on the U.S. Sentencing Commission when the Guidelines were first introduced in the mid-1980s, I wondered what Kennedy thought of the Guidelines back then. What I found (on LEXIS) was quite interesting:
The National Law Journal, September 29, 1986


LENGTH: 2649 words

HEADLINE: Revolution Nears On U.S. Sentences;
Massive Undertaking

BYLINE: BY FRED STRASSER, National Law Journal Staff Reporter



* * *

Within the next two weeks, the commission -- consisting of three judges, two social scientists, a law professor and a former member of the U.S. Parole Commission -- will unveil some tentative proposals for a new sentencing system scheduled to begin operating in October 1987.

When its job is done, the federal criminal justice system will have undergone a remarkable transformation -- and one that may well be a model for the states as well.

In the new system, judges no longer will have unfettered discretion to mete out penalties according to their views on crime and punishment. Parole will be abolished and with it, the parole board, making final whatever sentence a judge imposes. The idea of rehabilitation in prison, already in growing disfavor, will have been banished from the courtroom by law.

Instead, a new set of uniform standards will determine who goes to prison, for how long and for what crimes. The commission's final guidelines -- if accepted by Congress -- eventually will reach into every corner of the criminal justice system, exerting their influence on everything from plea bargaining to the number of inmates in federal prisons.

The commission's chief assignment, as stated by Congress in the Sentencing Reform Act of 1984, is to limit disparity in sentences handed down for similar crimes while leaving judges some flexibility in dealing with individual offenders. In all cases, judges will have a 25 percent range of discretion and the right to exceed it further with written justification.

* * *
Indeed, the commission was the product of a seldom-seen alliance of political forces in Congress.

In the Senate Judiciary Committee, the measure was co-sponsored by conservative Sen. Strom Thurmond, R-S.C., and the voice of the Democratic party's liberal wing, Sen. Edward M. Kennedy of Massachusetts.

The hands of both are still felt at the commission: Judge Breyer was the committee's counsel when Senator Kennedy was chairman, while Judge Wilkins once served as Senator Thurmond's legislative assistant.
Then this instance from 1994 in which Kennedy bragged of his role in creating the Guidelines:
The Boston Globe

October 24, 1994, Monday, City Edition


LENGTH: 1607 words

HEADLINE: Voters' fear of violence takes hold in Senate race;

BYLINE: By Anthony Flint, Globe Staff
* * *

"It's fair enough to ask if this has been a priority. For me, clearly it has," Kennedy said. Citing initiatives on gun control, bail reform, federal sentencing guidelines and other measures through the 1980s, Kennedy said, "I was taking different elements in the criminal justice system and addressing them one by one."

"The issues of security against violence is something I feel very strongly about. It's one of the most powerful factors and forces in my own life and in public life," he added.
* * *
Then Kennedy had this to say at the confirmation hearing for Breyer in 1994:
SEN. KENNEDY: Turning to another area involving the criminal justice system, as you know, Senator Thurmond and I worked for many years with the chairman, Biden, to pass the Sentencing Reform Act of 1984, the law that abolished the federal parole and created a sentencing guideline system in the federal courts.

And with all the talk about truth in sentencing, it's important to remember that we created truth in sentencing at the federal level 10 years ago.

Before that time, the sentencing system was a matter of law without order. Judges in two different courtrooms sentencing two equally culpable defendants might hand down two completely different sentences. One defendant might get 10 years; another might get probation. And there was nothing the prosecutors could do about it. And because of parole, the sentence imposed by the judge had little to do with the time the defendant actually served, and many criminals served only a third of their sentences, even in cases involving violent crimes. And this system led to people to lose faith in the ability of the legal system to do justice and protect the interest of victims of crime.

So we abolished parole in the federal system and created a commission to write sentencing guidelines so that criminals who commit similar crimes will get similar sentences and actually serve the time they get. You served as one of the first members of the commission. You helped forge the key agreements that got the job done. And these guidelines provide for tough, no-nonsense sentences, increasing the time served by violent criminals, and by white-collar corporate criminals who used to get special treatment in the federal courts.

Could you briefly describe how the guideline system achieves the truth in sentencing and why you think that truth in sentencing is an important goal?
As a former House Judiciary Committee counsel once said, "The sentencing guidelines, of course, were really very much a product of Teddy Kennedy's efforts over a decade to change how federal sentencing -- from an unstructured to a somewhat structured process." It takes quite a bit of gall for Kennedy, of all people, to complain merely because an Attorney General wants to appeal decisions in which federal district judges fail to follow the Sentencing Commission's requirements.

All that said, some of the sentences in the Guidelines (particularly for drug offenses) may be too harsh (see the example that Justice Kennedy recently gave in congressional testimony). Moreover, I don't know any federal judges who actually like the Sentencing Guidelines. Most of them tend to think that the Guidelines make their role far too robotic and technical. But the Guidelines do exist, thanks to Congress and Kennedy in particular. If Kennedy has decided that the Guidelines are too harsh, let him introduce legislation repealing his earlier handiwork.


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