The attorney general's order for U.S. attorneys to seek maximum penalties and limit plea bargains threatens to undermine prosecutors and overload the justice system.
Published September 25, 2003
Attorney General John Ashcroft apparently doesn't trust the legal judgment of his own corps of professional prosecutors in the field. A new directive sharply limits the ability of federal prosecutors to seek plea bargains with defendants, ordering attorneys to charge the most serious legally sound offenses available. The Justice Department says this is a way to establish uniformity so the same crimes result in equivalent charges. But as prosecutors themselves are saying, the consequence of this wrongheaded policy will be overloaded federal courts and the removal of vital discretion at the local level that the system relies upon for truly just outcomes.
The directive is part of Ashcroft's campaign to make federal sentences harsher and reverse the decentralized decisionmaking that marked the department under former Attorney General Janet Reno. Where Reno allowed U.S. attorneys to determine whether to seek the death penalty, Ashcroft has overridden local prosecutors, demanding they charge capital crimes even when it is against their better judgment. Ashcroft also requires prosecutors to report any time a judge departs downward from federal sentencing guidelines, a policy that can only have a chilling effect on judges who could risk being labeled soft on crime.
This latest order from the attorney general directs that only the toughest sentence be sought, even when particular cases warrant compassion. And it centralizes control, giving prosecutors little wiggle room to negotiate with defendants for guilty pleas in exchange for cooperation.
Currently, 96 percent of federal criminal cases are resolved through plea agreements. Experts say if this balance were altered even slightly, the system would be overwhelmed. What Ashcroft is demanding will either be roundly ignored or will grind the system to a halt - neither a responsible outcome.
This tough-on-crime approach may be popular with the electorate, but Ashcroft has forgotten the victims of crime. Contrary to conventional wisdom, prosecutors say that victims often want the process to end with a plea agreement. It gives them ready closure, sometimes the promise of restitution, and it allows victims to avoid testifying at a trial that may take years to come to court.
Ashcroft also has a tin ear when it comes to employee morale. His directive insults the ranks of federal prosecutors - a group, on the whole, of seasoned professionals - suggesting they don't have the requisite judgment to charge cases on their own. There is no epidemic of leniency in federal criminal court - just the opposite. Within the last six weeks, two U.S. Supreme Court Justices, Anthony Kennedy and Stephen Breyer, stated publicly that mandatory minimum sentences are too harsh, leading to unjust results. But Ashcroft wants to leave little discretion to local prosecutors to correct any imbalances. He apparently knows best, even if his way demoralizes the department's employees and threatens to overwhelm the justice system.