Order to Cut Plea Bargains Draws Ire

Critics Say Ashcroft Policy Will Hamper Prosecutors, Overload Federal Courts

GARY FIELDS / Wall Street Journal 23sep03

WASHINGTON—A new Justice Department policy to cut back on plea bargains with criminal defendants will hamper prosecutors and further overload the federal courts, some lawmakers and critics of the plan said.

Attorney General John Ashcroft sent a memo to U.S. attorneys ordering them to pursue maximum criminal charges and sentences whenever possible, seeking lesser penalties through plea bargains only in limited circumstances. It reverses a policy adopted by his predecessor, former Attorney General Janet Reno, that allowed prosecutors greater personal discretion to determine whether the charges and potential punishment fit the crime.

Justice Department officials said the policy was developed in part by an advisory group of U.S. attorneys and is meant to bring consistency to how the 94 U.S. attorney offices handle similar cases.

"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." But even with the change, defendants who plead guilty quickly still will get shorter sentences than those who go to trial, he said.

Associate Deputy Attorney General Dan Collins said it is a "mischaracterization" to say the policy shifts power to Justice Department headquarters. Others, including some federal prosecutors, disagree.

"I don't think there's any doubt main Justice is wielding more power than during the Reno years," one prosecutor said.

Rep. John Conyers (D., Mich.), senior Democrat on the House Judiciary Committee, said the move suggests Mr. Ashcroft has no confidence in those who work for him. "It's surprising he hasn't asked the president and the Senate to replace every U.S. attorney with prosecutors who follow his own ideological bent," he said.

The move to force cases to trial also comes as the federal courts face an increasing caseload and a significant number of judicial vacancies to handle it. Judges see plea bargains as a way to resolve cases without lengthy and costly trials.

Mr. Mercer said he doesn't anticipate a large rise in court cases. But after a similar order in 1989 by then-Attorney General Richard Thornburgh, the percentage of defendants seeking trials in sentencing-guideline cases rose to 14.6% in 1991 from 11.9% in 1989, according to the annual reports of the U.S. Sentencing Commission. That rate declined slightly the following year and plummeted during the Reno years.