Ashcroft Limiting Prosecutors' Use of Plea Bargains
By ERIC
LICHTBLAU
 ASHINGTON,
Sept. 22 — Attorney General John Ashcroft today made it tougher for
federal prosecutors to strike plea bargains with criminal defendants,
requiring attorneys to seek the most serious charges possible in almost
all cases.
The policy directive issued by Mr.
Ashcroft is the latest in a series of steps the Justice Department has
taken in recent months to combat what it sees as dangerously lenient
practices by some federal prosecutors and judges.
The move also effectively expands to
the entire gamut of federal crimes the attorney general's tough stance
on the death penalty, which he has sought in numerous cases over the
objections of federal prosecutors.
"The direction I am giving our U.S.
attorneys today is direct and emphatic," Mr. Ashcroft said at a speech
in Cincinnati. Except in "limited, narrow circumstances," he said,
federal prosecutors must seek to bring charges for "the most serious,
readily provable offense" that can be supported by the facts of the
case.
But critics in the defense bar and
some federal prosecutors said the new policy would serve only to further
centralize authority in the hands of Washington policymakers, discourage
prosecutors from seeking plea bargains and ratchet up sentences in
criminal cases that may not warrant them.
"What is driving this," said Gerald D.
Lefcourt, past president of the National Association of Criminal Defense
Lawyers, "is that a tough-on-crime attorney general is pandering to the
public, and he knows that this will play well."
Several federal prosecutors said they
were deeply concerned about the new policy, which was first reported in
The Wall Street Journal.
A West Coast prosecutor who spoke on
condition of anonymity said that while it might be difficult for
officials in Washington to enforce the new policy, it nonetheless puts
significant pressure on prosecutors to explain their actions and will
most likely result in fewer plea bargains in many jurisdictions.
"There's no doubt this could have a
real impact on all of us," the prosecutor said.
The policy change is likely to
escalate a debate that has become increasingly contentious over how
prosecutors and judges mete out justice in the federal courts.
With the backing of many Republicans
in Congress, the Justice Department has sought to impose greater
uniformity and "accountability" in federal cases.
In addition to the expanded use of the
death penalty, Mr. Ashcroft also announced a plan last month to track
data on judges who give lighter sentences than federal guidelines
prescribe.
But dissenters attacked the monitoring
plan as a judicial black list, arguing that denying judges and
prosecutors the discretion to analyze the facts of a case is a mistake.
And two Supreme Court justices,
Stephen G. Breyer and Anthony M. Kennedy, have given speeches in the
last six weeks arguing that Congressionally mandated "minimum"
sentences, which also curtail judicial discretion, have created a system
in which sentences sometimes are unfair or too long.
A decade ago, Attorney General Janet
Reno enacted a policy to give federal prosecutors more discretion over
how their cases should be handled by allowing for an "individualized
assessment" of the facts and circumstances of the case.
But Mr. Ashcroft's directive
effectively scales back that initiative in an effort to restrict the use
of plea bargains and create what the Justice Department said would be
more "transparency" in federal prosecutions.
Plea bargains are a popular and
powerful tool for prosecutors to secure the cooperation of defendants
and to speed cases through the system without devoting additional time
and resources to a trial. Some 96 percent of the 60,000 cases handled by
federal prosecutors in 2001, the last year for which complete figures
were available, resulted in plea bargains, officials said.
But the new policy states that
prosecutors must seek the most severe sentence allowed by law unless
there are overriding considerations.
Cases that allow for exceptions
include the "substantial assistance" of a cooperating defendant, the
drain on resources that a trial might cause and the Justice Department's
approval of a "fast-track" program used to expedite prosecutions, like
the type used in Southwest border states to prosecute illegal
immigrants.
Dan Collins, an associate deputy
attorney general, said the new policy sought to ensure that decisions
were driven by the facts of a crime and "not the luck of the draw in
terms of which prosecutor happens to work on your case or which judge is
assigned to it."
Despite the large percentage of cases
that result in plea bargains, Justice Department officials said they did
not expect the new policy to mean a "significant" reduction in their
use, but they added that it was too early to predict the ultimate impact
in terms of pleas or length of sentences.
Mr. Lefcourt of the defense lawyers
association said Mr. Ashcroft's directive "is just bad policy" because
it requires prosecutors to get the approval of a senior Justice
Department official, including an assistant attorney general in
Washington or a politically appointed United States attorney or another
supervisor, before executing a plea bargain.
"This is taking discretion away from
the U.S. attorneys' offices," he said. "The prosecutors on the ground
who are most involved in the facts of the cases should be making these
decisions. It shouldn't be dictated to them."
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