York Times Editorial
August 10, 2003
The founding fathers,
whose brilliant design for the federal government was based on
three coequal branches, would be horrified to learn of Attorney
General John Ashcroft's latest idea for improving the American
justice system. Mr. Ashcroft has ordered federal prosecutors to
start collecting information on federal judges who give sentences
that are lighter than those suggested by federal guidelines. Critics
are right when they say this has the potential to create a "blacklist"
of judges who could then be subjected to intimidation.
the United States Sentencing Commission in the mid-1980's, and
charged it with developing guidelines to bring greater uniformity
to sentences handed down by federal courts. The guidelines provide
a range of sentences a judge can hand down for particular crimes.
But they also permit judges discretion to impose a more lenient
sentence, known as a "downward departure," if they can
justify the decision. Judges frequently depart downward at the
urging of the government, to reward defendants who cooperate with
But the administration
and its allies in Congress have made no secret of their unhappiness
with judges who impose more lenient sentences than guidelines
call for. They have tried a variety of methods of pressuring judges
to see things their way, including starting a Congressional investigation
into the sentencing practices of James Rosenbaum, a United States
District Court judge in Minnesota.
Mr. Ashcroft's latest
initiative raises these pressures to a new level. Under the new
policy, federal prosecutors will be required in many cases to
report when a judge departs downward from the sentence recommended
by the federal guidelines. The Justice Department has said it
intends to use the data to identify how often particular judges
depart downward. Obviously, judges are going to be worried about
coming in high on the list, and those who do will wonder if they
will be subject to intimidation, as Judge Rosenbaum was.
At the very least,
the Ashcroft plan would subject federal prosecutors to an unusual,
and undesirable, degree of top-down management. Right now, individual
prosecutors decide when to appeal a judge's sentence. Mr. Ashcroft
seems to want that decision to be made after a review from Washington.
A prosecutor who feels a given judge is consistently handing down
sentences that are too mild can certainly let his or her feelings
be known to superiors. But this new, rigorous and rigid reporting
system seems to treat prosecutors as lackeys, and judges as some
kind of minor civil servants who can be ordered around by the
president and his appointees.
By trying to make
federal judges yield to political pressure from Washington, the
Bush administration is engaging in a radical attack on our constitutional
system. Even Chief Justice William Rehnquist, whose conservative
credentials are unassailable, has warned that collecting data
on judges' sentencing practices "could amount to an unwarranted
and ill-considered effort to intimidate individual judges."
Mr. Ashcroft should heed these words, and abandon his dangerous
war on the judicial branch.