No Bargain




Attorney General John Ashcroft ordered federal prosecutors on Monday to limit the use of plea bargains and to seek the maximum criminal punishment whenever possible. As well as giving prosecutors more work to do and further straining an overloaded prison system, the net effect of the directive will be to centralize more power with Ashcroft’s Department of Justice. Which is precisely the point.

Ashcroft says the directive merely establishes uniformity within the federal judicial system. The Associated Press reports:

“‘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.'”

So what’s the downside? The AP notes that critics, ranging from prosecutors to defense attorneys and judges, are less than thrilled at the impact the directive would have on the criminal justice system:

“Gerald Lefcourt, past president of the National Association of Criminal Defense Lawyers, said the directive would make the federal criminal system ‘inflexible and problematic’ because fewer defendants would plead guilty to harsher offenses.

Mr. Lefcourt also predicted that it would further burden a corrections system already strained by a record number of prisoners.

‘If all you want is to have everyone who is ever charged with something warehoused, this is a good thing,’ Mr. Lefcourt said. ‘It’s not just about warehousing people. It’s about a fair and sure system.'”

Plea bargains are a useful tool for defense attorneys and prosecutors. Prosecutors like to use them as leverage to secure cooperation from defendants. Defense attorneys like to use them to mitigate sentences. (On the other hand, innocent people have been known to cop a plea to avoid a harsher sentence if convicted, which isn’t so great.)

Although Ashcroft claims that he will offer flexibility to prosecutors who want to enter plea bargains, the new directive requires prosecutors to get the DOJ’s say-so ahead of time, severely limiting prosecutorial discretion. Lefcourt is also quoted in the New York Times as saying that the new order takes “discretion away from the U.S. attorneys’ offices.” The prosecutors involved in the case “should be making these decisions,” he says. “It shouldn’t be dictated to them.”

A closer look at Ashcroft’s previous directives reveals a larger pattern of power hoarding at Justice, amounting to what some critics call “an unwiedly one-size-fits-all approach” to “consolidate power at the Justice Department.” Just last month, for instance, Ashcroft ordered federal prosecutors to report any judges to him who departed from Bush’s newly established minimum sentencing guidelines. Ashcroft’s blacklist of judges drew fire from all sides, including Supreme Court Justice Anthony Kennedy, cited here in an editorial by the San Francisco Examiner:

“What Ashcroft is doing is keeping a blacklist of judges who use their judgment in meting out punishment and who are not considered to be cooperative with prosecutors.

That unbalances the criminal justice system and makes judges pure automatons in the courtroom.

The circumstances in all criminal cases are bound to be different.

Maintaining one single standard for all cases is precisely the reason why the United States prison system contains the largest number of inmates in the Western hemisphere.

Justice Kennedy had the courage to call the system unfair and unworkable.

We hope the message gets through to the Bush administration.”

Last week Ashcroft dropped regulations put in place by former attorney general Janet Reno barring federal prosecutors from seeking the death penalty in states that prohibit capital punishment. The Boston Globe calls Ashcroft’s directive an attempt to “nationalize” the death penalty:

“Since taking over as attorney general, Ashcroft has authorized the federal death penalty against 12 defendants in states that don’t have a state death penalty: three in Massachusetts, one in Vermont, six in Michigan, one in Iowa, and one in West Virginia. In seven of those cases — in Vermont and Michigan — Ashcroft overruled federal prosecutors who recommended against the death penalty, according to statistics compiled by the Resource Counsel.

Seeking the death penalty is one thing; getting a jury to impose it is something else entirely, according to statistics. Of the last 21 federal death penalty cases, jurors refused to impose the death penalty in 20 of them.”

The Christian Science Monitor suggests that Aschroft “embodies a seemingly insatiable appetite for more federal law-enforcement power” that serves to deflect blame from Bush:

“In the current administration, the styles of both Bush and Ashcroft allow the attorney general to play the lightning-rod role.

‘Lightning rods work when (a) a president is perceived as not being fully in charge and (b) when he projects an ideologically muddy image, such as compassionate conversative,’ says Richard Ellis, author of ‘Presidential Lightning Rods.’

‘Clearly, Ashcroft takes a lot of heat,’ says Ellis, the author on presidential lightning rods. ‘Whether that helps Bush is hard to say. The idea of a lightning rod is you’re deflecting blame from the president. At some point, people can attract lightning to the administration.'”

Perhaps. What’s beyond doubt is that, whether the impetus comes from the Justice Department or the White House, decisions normally made on a local level are increasingly being centralized. And individualized judicial review, which allows what Justice Kennedy calls “a unique study in human failings that sometimes mitigated, sometimes magnify, the crime and punishment” is in jeopardy. “Ashcroft would replace this tradition,” says the Los Angeles Times “with a system that imposed sentences without variation and without understanding.”