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Attorney General Ashcroft's New Charging, Plea Bargaining, and Sentencing Policies:
Though Consideration Is Needed, Criticism Has Been Overstated


Thursday, Oct. 02, 2003

Last week, Attorney General John Ashcroft announced a new policy, and launched another controversy. This time, though, the issue didn't relate to post-September 11 anti-terrorism policies, but rather to the Department of Justice's bread-and-butter business: The enforcement of criminal law.

Critics have charged that the result of the new policy will be to derail the plea bargaining process by which more than 90% of all criminal cases are currently resolved. And they claim the result will be to send numerous cases to trial that would otherwise have resulted in pleas, and thus to create an unworkable logjam in the courts.

I am no fan of Ashcroft, or of the new policy, but these criticisms are overblown. They also distract from a very serious problem with Ashcroft's sentencing policies: His insistence on exerting pressure on federal judges when it comes to the sentences that they impose.

The Three Aspects of the New Policy

The new policy has three parts. First, it requires federal prosecutors generally to pursue "the most serious readily provable chargeable offense." (There are exceptions to the rule, but only in a relatively narrow set of delineated circumstances.)

Second - and relatedly - it generally prohibits prosecutors from "charge bargaining" when negotiating guilty pleas. (Once again, there are some exceptions).

That means that prosecutors - having pursued "the most serious readily provable offense" in accordance with the first part of the policy - generally cannot drop down to more modest charges in order to secure a guilty plea. Rather, they must compel the defendant to either plead guilty to the most serious readily provable offense, or face trial.

Third, at the sentencing stage, Ashcroft's policy requires federal prosecutors to actively oppose defense requests for "downward departures" from the sentencing range dictated by the U.S. Sentencing Guidelines. (Again, there are very limited exceptions; for example, the policy recognizes that a downward departure must be warranted when a defendant has cooperated with the government in a criminal investigation.)

Ashcroft's Policy Is Actually Quite Similar to Reno's Prior Policy

This new charging and plea bargaining policy has been depicted as a radical change. In fact, it is not all that different from Clinton Attorney General Janet Reno's policy with respect to the same issues.

There is one major difference, however. Under Reno, exceptions to the general policy of charging the most serious offense were often made at the local level. Under Ashcroft, they are more frequently to be made at the national level.

This change, as well as the overall tone of Ashcroft's policy memo, deserve careful consideration, but not reflexive hysteria.

Some Background: The U.S. Sentencing Guidelines

Before assessing Ashcroft's and Reno's policies, it's helpful to go over some background on the U.S. Sentencing Guidelines - which control federal criminal sentences to a significant degree.

Before the Guidelines, federal guides had a great deal of latitude in sentencing. That led to some dramatic instances of unfairness. At times, defendants who were convicted of - or pleaded guilty to - the very same type of crime under very similar circumstances, nevertheless received very different sentences due to the judges they happened to appear before.

Recognizing this problem, Congress convened the U.S. Sentencing Commission, which issued the Guidelines. The purpose of the Guidelines was to increase sentencing uniformity - that is, to ensure that defendants who commit similar crimes and have similar criminal histories receive similar sentences. Toward this end, the Guidelines cut down greatly on individual federal judges' sentencing discretion. Indeed, applying them is quite mechanical.

Here is an inevitably somewhat oversimplified explanation of how it's done: The judge figures out the "offense level" based on what the crime is, and what harm it caused. (For example: How much money was taken? How many victims were there?) The judge also figures out the defendant's "criminal history category" by looking to prior convictions. Then the judge looks at a chart that states, for a given combination of offense level and criminal history category, what the sentencing range is.

The judge must sentence the defendant within this range - except in certain circumstances. An express exception set out in the Guidelines may apply. Or, alternatively, the judge may believe the Guidelines did not envision this particularly set of circumstances, and depart from the sentencing range itself. But that kind of departure can only be made in very unusual circumstances; the Guidelines, after all, contemplated all different kinds of potential criminal activity, and made provision for sentencing ranges for all of them.

Ashcroft's and Reno's Policies: Plea Bargaining in the Shadow of the Guidelines

The Guidelines have succeeded in ensuring uniform treatment of similarly situated defendants - but only up to a point. One major criticism of them is that they transfer sentencing power from judges to prosecutors, and that means the same disparities - and unfairnesses - recur.

By manipulating what offense they choose to charge, prosecutors can alter a defendant's "offense level" and in turn, lower the defendant's ultimate sentence. Indeed, they can do so with great predictability: The Guidelines connecting offense level and criminal history to ultimate sentence are published for all to see - defendant, defense lawyer, prosecutor, and judge alike.

Again, the problem of sentencing disparity recurs. Two defendants with the same criminal history commit what is, in essence, the same crime. But one is unlucky enough to draw an aggressive prosecutor, and the other, a lenient prosecutor. Again, the two unfairly receive very different sentences.

Ashcroft's solution - and Janet Reno's before him - is to force every prosecutor to be aggressive, and to charge the most serious readily provable offense. The result is to promote the uniform treatment of federal defendants - a reasonable aim.

Moreover, the Guidelines aren't the only reason for this rule. If a prosecutor doesn't charge the most serious offense he or she can prove, that is, in essence, a personal judgment not to enforce a federal criminal statute - and thus to thwart the will of Congress. That is more power than any individual prosecutor should have.

Meanwhile, Ashcroft's (and Reno's) curb on "charge bargaining," and their curb on acquiescence in sentencing departure requests, similarly rein in individual prosecutors who might be inclined to be more lenient than their counterparts elsewhere. They, too, promote uniformity in federal sentencing.

Critics may still object to the policies' tendency to make sentencing harsher, by forcing all prosecutors to toe the line of their most aggressive brethren. But it is important to note that the aim is not harshness for its own sake, but rather, uniformity.

The Real Difference Between Ashcroft and Reno: Centralization

So what's the difference between Ashcroft's and Reno's policies, if any? It boils down to the issue of whether control over prosecutorial policy should be centralized, or decentralized.

Under Janet Reno, decentralization was the norm. As a result, the existence of inconsistent policies among various U.S. Attorneys' Offices was a significant problem. On the other hand, those various policies may have, to some extent, responded to real differences in the prosecutorial needs of disparate communities.

Ashcroft, in contrast, is a centralizer - here, as elsewhere. His new policy memo sends a clear signal: Major decisions about prosecutorial priorities at the local and regional level are now going to be dictated by the central command in Washington, not by local U.S. Attorneys. As I have noted, this is indeed a significant change from Reno's prior approach.

Ashcroft loves to centralize power. For instance, his practice is to override the decisions of local U.S. Attorneys whether to seek the death penalty in individual cases. Where a local prosecutor may have counseled mercy or temperateness, Ashcroft has repeatedly stepped in to insist upon death.

Centralization of power is not an inherent evil. The question is, How is that centralized power used? Unfortunately, in the case of Attorney General Ashcroft, the misuse of power is a recurring problem. The Attorney General has repeatedly traded civil liberties for ever greater and more intrusive governmental power. These incursions on the Bill of Rights should be fought at every turn.

The Real Problem with Ashcroft's Attitude Toward Sentencing: Pressuring Judges

At the same time that he has promulgated this new policy, Attorney General Ashcroft, with the help of the Republican Congress, is attempting to affect federal sentence in a different - and far more disturbing way.

Ashcroft, and Congress, are currently exerting strong pressure on judges not to depart from the sentencing guidelines. They have even gone so far as to statistically track, and publicly pressure, those federal judges they believe to be granting too many downward departures.

That's outrageous for two reasons. First, the independence of the federal judiciary is a hallmark of our judicial system, and such measures improperly threaten it. Federal judges serve for life for a reason, so that their judgment can be independent. And that independence is significantly undermined when the other branches of government attempt to politically intimidate the judiciary into towing a particular policy line.

Second, while, uniformity in sentencing is an important goal, it isn't the only goal. At the end of the day, no set of enumerated factors, no algorithm, will ever be able to capture the full complexity of what constitutes the "right" sentence in an individual case.

It is essential that some actor in the sentencing process have limited but real discretion to approximate a just result in those cases where the Guidelines don't seem to have done the trick. Under Ashcroft's policy, the prosecutor can't be that actor. That makes it all the more essential that the federal judge can.

Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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