Ashcroft On Pleas: Costly Change Or Nothing New?

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Will Attorney General John Ashcroft’s new limits on plea bargains in federal prosecutions cause a crisis in the courts? Theoretically, yes. “If even just a small fraction of the 96 percent of all defendants who currently plead guilty end up going to trial, the courts will be overrun in no time,” said Marc Mauer of the Washington, D.C.-based Sentencing Project, told the New York Times.

The directive requires federal prosecutors to charge defendants with “the most serious, readily provable offense” and, with some exceptions, not to engage in plea negotiations thereafter.

Prosecutors were divided over the policy. “A check-the-box analysis really does mask differences,” said Mary Jo White, the top federal prosecutor in Manhattan for almost a decade. “Crimes are different, places are different, people are different.” But William W. Mercer, U.S. Attorney in Montana, said fairness was what the directive would achieve: “It’s meant to minimize unwarranted sentencing disparities among similarly situated defendants.”

David Burnham of the Transactional Records Access Clearinghouse at Syracuse University, which tracks federal law enforcement, said the Justice Department could not significantly reduce plea bargains “without collapsing the entire court system.” Plea bargains “are a necessary thing,” he said. “Plea bargains have been used historically because the courts don’t have time to have trials. Charges are reduced to encourage prisoners to avoid going to trial, and we just don’t have enough judges to do it differently. If you force everyone to go to trial, you’d have to hire a lot more judges.”

As a consequence, almost no one expects strict enforcement of the directive. Instead, if history is any guide, local prosecutors will retain substantial flexibility but will exercise it quietly and early, before rather than after charges are filed.

Indeed, the Atlanta Journal-Constitution says that Ashcroft’s move is not likely to paralyze the federal courts. Richard Deane, a former U.S. attorney in Atlanta, said the announcement may have a minor effect on court calendars but is nothing new. “It sounds tough. It sounds new. But once you peel it away, it isn’t.” He noted that Attorney General Richard Thornburgh, who served under the elder President Bush, issued a directive similar to Ashcroft’s.

U.S. Attorney Bill Duffey said the effect of Ashcroft’s order will be to help ensure certainty in charging and sentencing. “It holds us accountable to what Congress intended. At the same time, it provides the proper amount of discretion I need to manage my resources in administering justice in my district.”

Dwight Thomas, president of the Georgia Association of Criminal Defense Lawyers, said the more discretion is taken away, the more jury trials will result. “I’d rather take my chances before a jury that might believe my defendant rather than walking in the door and getting slammed anyway. I think a lot of criminal defense lawyers are going to have that attitude: Roll the dice. And taxpayers are going to end up paying for that.”

Atlanta criminal defense lawyer Craig Gillen said the Bush Administration is encouraging a justice system that is far too rigid. “We’re heading to a more robotic system of justice. I’m a believer in selecting good and wise people and letting them do their jobs.”


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