Ashcroft Limiting Prosecutors' Use of Plea Bargains 

ERIC LICHTBLAU / NY Times 23sep03

[AP article below]

WASHINGTON, Sept. 22 — Attorney General John Ashcroft today made it tougher for federal prosecutors to strike plea bargains with criminal defendants, requiring attorneys to seek the most serious charges possible in almost all cases.

The policy directive issued by Mr. Ashcroft is the latest in a series of steps the Justice Department has taken in recent months to combat what it sees as dangerously lenient practices by some federal prosecutors and judges.

The move also effectively expands to the entire gamut of federal crimes the attorney general's tough stance on the death penalty, which he has sought in numerous cases over the objections of federal prosecutors.

"The direction I am giving our U.S. attorneys today is direct and emphatic," Mr. Ashcroft said at a speech in Cincinnati. Except in "limited, narrow circumstances," he said, federal prosecutors must seek to bring charges for "the most serious, readily provable offense" that can be supported by the facts of the case.

But critics in the defense bar and some federal prosecutors said the new policy would serve only to further centralize authority in the hands of Washington policymakers, discourage prosecutors from seeking plea bargains and ratchet up sentences in criminal cases that may not warrant them.

"What is driving this," said Gerald D. Lefcourt, past president of the National Association of Criminal Defense Lawyers, "is that a tough-on-crime attorney general is pandering to the public, and he knows that this will play well."

Several federal prosecutors said they were deeply concerned about the new policy, which was first reported in The Wall Street Journal.

A West Coast prosecutor who spoke on condition of anonymity said that while it might be difficult for officials in Washington to enforce the new policy, it nonetheless puts significant pressure on prosecutors to explain their actions and will most likely result in fewer plea bargains in many jurisdictions.

"There's no doubt this could have a real impact on all of us," the prosecutor said.

The policy change is likely to escalate a debate that has become increasingly contentious over how prosecutors and judges mete out justice in the federal courts.

With the backing of many Republicans in Congress, the Justice Department has sought to impose greater uniformity and "accountability" in federal cases.

In addition to the expanded use of the death penalty, Mr. Ashcroft also announced a plan last month to track data on judges who give lighter sentences than federal guidelines prescribe.

But dissenters attacked the monitoring plan as a judicial black list, arguing that denying judges and prosecutors the discretion to analyze the facts of a case is a mistake.

And two Supreme Court justices, Stephen G. Breyer and Anthony M. Kennedy, have given speeches in the last six weeks arguing that Congressionally mandated "minimum" sentences, which also curtail judicial discretion, have created a system in which sentences sometimes are unfair or too long.

A decade ago, Attorney General Janet Reno enacted a policy to give federal prosecutors more discretion over how their cases should be handled by allowing for an "individualized assessment" of the facts and circumstances of the case.

But Mr. Ashcroft's directive effectively scales back that initiative in an effort to restrict the use of plea bargains and create what the Justice Department said would be more "transparency" in federal prosecutions.

Plea bargains are a popular and powerful tool for prosecutors to secure the cooperation of defendants and to speed cases through the system without devoting additional time and resources to a trial. Some 96 percent of the 60,000 cases handled by federal prosecutors in 2001, the last year for which complete figures were available, resulted in plea bargains, officials said.

But the new policy states that prosecutors must seek the most severe sentence allowed by law unless there are overriding considerations.

Cases that allow for exceptions include the "substantial assistance" of a cooperating defendant, the drain on resources that a trial might cause and the Justice Department's approval of a "fast-track" program used to expedite prosecutions, like the type used in Southwest border states to prosecute illegal immigrants.

Dan Collins, an associate deputy attorney general, said the new policy sought to ensure that decisions were driven by the facts of a crime and "not the luck of the draw in terms of which prosecutor happens to work on your case or which judge is assigned to it."

Despite the large percentage of cases that result in plea bargains, Justice Department officials said they did not expect the new policy to mean a "significant" reduction in their use, but they added that it was too early to predict the ultimate impact in terms of pleas or length of sentences.

Mr. Lefcourt of the defense lawyers association said Mr. Ashcroft's directive "is just bad policy" because it requires prosecutors to get the approval of a senior Justice Department official, including an assistant attorney general in Washington or a politically appointed United States attorney or another supervisor, before executing a plea bargain.

"This is taking discretion away from the U.S. attorneys' offices," he said. "The prosecutors on the ground who are most involved in the facts of the cases should be making these decisions. It shouldn't be dictated to them."

Ashcroft Limits Prosecutor Discretion

AP 23sep03

WASHINGTON—Attorney General John Ashcroft wants federal prosecutors to seek the severest charges and penalties more often. Experts say it won't be easy to achieve the uniformity he wants.

Ashcroft said in a memo Monday to all 94 U.S. attorneys' offices that plea bargains should only be pursued in limited, specific circumstances.

"In virtually all cases, prosecutors must bring the toughest charges available, yielding the toughest penalties under the sentencing guidelines," Ashcroft said in a speech Monday in Milwaukee.

The policy change is the latest example of Ashcroft's attempts to bring greater symmetry -- critics say inflexibility -- to the federal justice system. During the summer Ashcroft instructed U.S. attorneys to seek the death penalty whenever applicable, overruling some who would not, and to vigorously oppose sentences imposed by judges that are lighter than recommended by federal guidelines.

Michael O'Neill, a George Mason University law professor and member of the U.S. Sentencing Commission, said Ashcroft deserved credit for seeking greater consistency but might not achieve it.

"As a practical matter, achieving this uniformity is difficult," O'Neill said. "You have regional differences. Five grams of crack cocaine might mean something different in New York than it does in Iowa."

Critics predicted the new plea bargain policy will severely limit prosecutors' options, forcing more defendants to face costly, time-consuming trials instead of pleading guilty and adding to prison overcrowding problems through harsher sentences.

"No two crimes, and no two defendants, are exactly alike," said Marc Mauer, assistant director of The Sentencing Project, a research group that advocates alternatives to prison.

Gerald Lefcourt, past president of the National Association of Criminal Defense Lawyers, said the change "creates a system that is not only inflexible and problematic, but becomes a sort of immovable object. You're adding more unfairness to the system."

Nearly all federal criminal cases are resolved before they go to trial. According to Justice Department statistics for fiscal 2001, more than 96 percent of criminal defendants pleaded guilty to the offense charged or to a reduced charge, or had their cases dismissed.

The order by Ashcroft marks a return to the spirit of the original instructions for prosecuting cases under federal sentencing guidelines developed in 1989 by then-Attorney General Richard Thornburgh. Those instructions were rewritten to provide more individual discretion by former Attorney General Janet Reno in the 1990s.

Justice Department officials said the policy, developed by a 15-member advisory group of U.S. attorneys, provides enough flexibility to deal with differences in defendants and still ensure that all prosecutors pursue the same brand of justice.

"The whole purpose is to eliminate the disparity between similarly situated defendants," said U.S. Attorney Bill Mercer of Montana. "It's very hard to deter crime if there's a perception that a person isn't going to be held accountable for his or her actions."

The Ashcroft memo provides six specific exceptions for plea bargains from the "general duty" to pursue the most serious crimes:

• When a defendant agrees to provide "substantial assistance" in an investigation. Ashcroft said the message is, "if defendants will cooperate, the green light is on for negotiation."
• Under so-called fast-track programs aimed at unclogging court dockets in which certain types of defendants are given a preset charge and sentence lower than that called for under federal guidelines. These programs, which will be reviewed individually by the Justice Department, are popular for common immigration and drug violations in the Southwest.
• When prosecutors decided that the original charges will be tough to prove in court because of witness access problems, suppressed evidence or some other reason.
• If the possible sentence would be unaffected by a charge under a lesser offense.
• When "enhancements" that could result in a longer sentence, such as a defendant facing multiple charges connected with the main crime, remove any incentive for the defendant to plead guilty. Enhancements for firearms offenses, however, would generally have to be included.
• On a case-by-case basis for other reasons with written approval by a supervisor.