Attorneys specializing in criminal law are dissecting recent actions by Attorney General John Ashcroft ordering federal prosecutors to file the most serious charges possible and asking for reports on judges who give lower penalties than recommended in sentencing guidelines.
The National Law Journal says some lawyers assert that Ashcroft has misunderstood and misinterpreted the sentencing guideline system put into effect in the late 1980s. Mark Allenbaugh, a former staff attorney at the U.S. Sentencing Commission now at Washington’s Montenonico, Belcoure & Tazzara, said the Ashcroft memos and a new law on the subject display a misunderstanding of the role discretion was supposed to play under the sentencing guidelines. “Congress has lost faith in the very animal they created,” he said.
The idea behind the guidelines was, Allenbaugh said, to arrive at a “heartland range.” It would do justice to the majority of defendants while giving judges discretion because a rigid set of rules can’t always capture relevant information. The guidelines spell out aggravating and mitigating factors that allow judges to depart. Allenbaugh believes that Ashcroft and Congress looked at statistics showing a recent increase in downward departures and regional variations and jumped to the conclusion that judges were dispensing mercy in a standardless fashion. Allenbaugh said that the statistical anomalies cited by Ashcroft can have any number of causes, including the the Sentencing Commission’s failure to predict accurately where the majority of cases will fall.
Professor Jonathan Turley of George Washington University Law School is afraid that the paper trail mandated by the Ashcroft memorandums will supply ammunition for a campaign of vilification. “Ashcroft destroys the reputations of judges he doesn’t like,” Turley charged, pointing to the case of Ronnie White. White, a judge on the Missouri Supreme Court, was appointed to the federal bench by President Bill Clinton in 1997. His nomination was rejected by the Senate in large part because Ashcroft, then a senator from Missouri, asserted that White’s opinions were “pro-criminal and activist, with a slant toward criminals and defendants against prosecutors.” Turley said that Ashcroft’s charges were “ridiculous,” adding that White went on to become chief justice of the Missouri court.