albionmoonlight
09-24-2003, 10:07 AM
http://www.cnn.com/2003/LAW/09/22/ashcroft.plea.bargains.ap/index.html
WASHINGTON (AP) -- Attorney General John Ashcroft ordered federal prosecutors Monday to pursue maximum criminal charges and sentences whenever possible and to seek lesser penalties through plea bargains only in limited circumstances.
An Ashcroft memo sent to all 94 U.S. attorneys' offices supersedes policy during Attorney General Janet Reno's tenure that allowed prosecutors greater individual discretion to determine if the charges and potential punishment fit the crime.
Ashcroft said his intent is to bring greater consistency to criminal prosecutions around the country.
"It's a direction for the way we prosecute criminal behavior at the federal level," Ashcroft said Monday after a speech in Cincinnati. "If you violate a federal law, punishment will be uniform."
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.
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 Attorney General Richard Thornburgh. Those instructions were rewritten by 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 said prosecutors will have a "general duty" to pursue the most serious crimes they feel confident of proving in court.
Plea bargains involving lesser charges should be limited -- there are six specific exceptions -- and would frequently have to be approved in writing by a supervisor.
The plea-bargain exceptions are:
Protesters demonstrate Monday in Cinncinati while Ashcroft was speaking inside.
• 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 decide 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 remove any incentive for the defendant to plead guilty, such as when he or she faces multiple charges connected with the main crime.
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.
________________________________________________
There are a few major problems with this plan as I see it:
1.) No one knows how best to operate a system than the people who are actually doing it. Here you have lifetime federal prosecutors who have been doing the job for twenty years and who do NOT need their hand held by bureaucrats in DC. They know what cases need to be pushed, and what cases should be plead. These are not cashiers at Burger King who have been giving away too much ketchup. These are highly trained and very well educated federal officers who have the experience and the intelligence to do their jobs. Adding a level of bureaucracy to the system that puts the day-to-day case management decisions out of their hands and into the hands of officials 3000 miles away in DC will do nothing but gum up the process. The myth is that Republicans want leaner government and Democrats want big bureaucracy. The truth is that whoever is in charge wants as much control as they can possibly get over every aspect of the system; it's human nature.
2.) 96% of federal crimes are plea bargained. It is a necessary tool to make sure that justice moves efficiently. The last thing that overworked and underpaid federal prosecutors and federal public defenders need is more work--work that they know is pointless. These guys have the talent to go make six figures working for big law firms. They chose to be prosecutors, in part, because they are willing to take less money in order to help enforce justice for the people. If DC decides to make their job too hard, they will take their talents elsewhere (at least the good ones will).
3.) As a law student, lawyer, and now law clerk, I have encountered a fair number of prosecutors and prosecutors in training. Any policy based on an assumption that these guys and women are soft on crime is an incorrect and misguided policy. Anyone who chooses to be a federal prosecutor and rises through the ranks to the point of being able to make plea decisions in important cases is NOT soft on crime. If they choose to accept a plea bargain, it is because they have made a strategic choice, based on the resources available, to accept a plea in that case. It is not because, in some general sense, they feel sorry for criminals.
4.) Forcing prosecutors to spend more time and energy on the run of the mill drug case will, of course, mean that they have less time and energy to spend prosecuting the really serious crimes--meaning that some really bad people may not get convicted because of this policy (not to mention the time that will be spent by crime labs and police officers testifying in trials that would have otherwise been plead out. Personally, I want my cops in the field doing cop stuff and not spening their time sitting in court waiting to testify in a trial that should not even be going on.)
WASHINGTON (AP) -- Attorney General John Ashcroft ordered federal prosecutors Monday to pursue maximum criminal charges and sentences whenever possible and to seek lesser penalties through plea bargains only in limited circumstances.
An Ashcroft memo sent to all 94 U.S. attorneys' offices supersedes policy during Attorney General Janet Reno's tenure that allowed prosecutors greater individual discretion to determine if the charges and potential punishment fit the crime.
Ashcroft said his intent is to bring greater consistency to criminal prosecutions around the country.
"It's a direction for the way we prosecute criminal behavior at the federal level," Ashcroft said Monday after a speech in Cincinnati. "If you violate a federal law, punishment will be uniform."
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.
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 Attorney General Richard Thornburgh. Those instructions were rewritten by 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 said prosecutors will have a "general duty" to pursue the most serious crimes they feel confident of proving in court.
Plea bargains involving lesser charges should be limited -- there are six specific exceptions -- and would frequently have to be approved in writing by a supervisor.
The plea-bargain exceptions are:
Protesters demonstrate Monday in Cinncinati while Ashcroft was speaking inside.
• 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 decide 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 remove any incentive for the defendant to plead guilty, such as when he or she faces multiple charges connected with the main crime.
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.
________________________________________________
There are a few major problems with this plan as I see it:
1.) No one knows how best to operate a system than the people who are actually doing it. Here you have lifetime federal prosecutors who have been doing the job for twenty years and who do NOT need their hand held by bureaucrats in DC. They know what cases need to be pushed, and what cases should be plead. These are not cashiers at Burger King who have been giving away too much ketchup. These are highly trained and very well educated federal officers who have the experience and the intelligence to do their jobs. Adding a level of bureaucracy to the system that puts the day-to-day case management decisions out of their hands and into the hands of officials 3000 miles away in DC will do nothing but gum up the process. The myth is that Republicans want leaner government and Democrats want big bureaucracy. The truth is that whoever is in charge wants as much control as they can possibly get over every aspect of the system; it's human nature.
2.) 96% of federal crimes are plea bargained. It is a necessary tool to make sure that justice moves efficiently. The last thing that overworked and underpaid federal prosecutors and federal public defenders need is more work--work that they know is pointless. These guys have the talent to go make six figures working for big law firms. They chose to be prosecutors, in part, because they are willing to take less money in order to help enforce justice for the people. If DC decides to make their job too hard, they will take their talents elsewhere (at least the good ones will).
3.) As a law student, lawyer, and now law clerk, I have encountered a fair number of prosecutors and prosecutors in training. Any policy based on an assumption that these guys and women are soft on crime is an incorrect and misguided policy. Anyone who chooses to be a federal prosecutor and rises through the ranks to the point of being able to make plea decisions in important cases is NOT soft on crime. If they choose to accept a plea bargain, it is because they have made a strategic choice, based on the resources available, to accept a plea in that case. It is not because, in some general sense, they feel sorry for criminals.
4.) Forcing prosecutors to spend more time and energy on the run of the mill drug case will, of course, mean that they have less time and energy to spend prosecuting the really serious crimes--meaning that some really bad people may not get convicted because of this policy (not to mention the time that will be spent by crime labs and police officers testifying in trials that would have otherwise been plead out. Personally, I want my cops in the field doing cop stuff and not spening their time sitting in court waiting to testify in a trial that should not even be going on.)