Big John’s Blacklist

The attorney general, exercising his executive muscle once again, is directing federal prosecutors to report federal judges who hand down penalties that don’t meet federal sentencing requirements. Ashcroft’s July 28 Justice Department memo amends the United States Attorneys’ Manual, which had only required that prosecutors report sentences they hoped to appeal.

Understandably, critics, including some conservatives, are lashing out at this latest Ashcroftian blow to the Judicial Branch, with some calling it an attempt to create a “blacklist of judges.”

Ashcroft’s power play was set in motion by a little-known provision of the highly-publicized “Amber Alert” child protection law. The provision, drafted by Ashcroft’s Justice Department, makes it far easier for prosecutors to appeal lenient sentences — referred to obliquely in the Ashcroft memo as “downward departures.”

Even Chief Justice William Rehnquist, a judicial conservative’s judicial conservative, has expressed qualms about the provision. As Edward Walsh and Dan Eggen of The Washington Post report, Rehnquist worries that the measure will “seriously impair the ability of courts to impose just and reasonable sentences.”

But if Big John is concerned by such skepticism, he isn’t letting on. Ashcroft trumpets that his new directive will change the previously ad-hoc process in which prosecutors reported unacceptably lenient judges, leading to greater uniformity among prison sentences imposed by federal judges. The fact that the ‘uniformity’ would result from eradicating moderate decisions and possibly the judges who hand them down, of course, is just a happy side-effect for Ashcroft.

Typically, Ashcroft’s memo is infused with a righteous tone — in explaining his decree, he proclaims that “The Department of Justice has a solemn obligation to ensure that laws concerning criminal sentencing are faithfully, fairly and consistently enforced.” But, as The Associated Press points out, the result is that “more decisions to appeal will be made at ‘main Justice’ in Washington rather than left to prosecutors in the field.” In other words, critics contend, this is little more than an ideological power-grab; Ashcroft wants prosecutors to report “downward departures” so that he and his political appointee staff can strengthen their strangle-hold on judicial discretion.

The editors of the San Francisco Examiner bemoan this shift in prosecutorial authority, particularly when it comes to deciding what sentences should be appealed. But of greater concern, the Examiner argues, is the impact Ashcroft’s order will have on judicial independence:

“A number of new laws have served to concentrate considerable power in the federal government, particularly in the executive branch. Such growing of the government is a little odd for a Republican administration, but Ashcroft’s latest move amounts to a perplexing lack of understanding of the need for an independent judiciary.

In the U.S. we have, to paraphrase the old saying, a system of laws and not of people. But the attorney general seems to think that federal legislation has been revealed on Mount Sinai.

Laws must not hold people hostage. Judges are necessary to interpret the law, which is relatively static, for individual cases, every one of which is unique. What’s next, requiring prosecutors to report every juror who declines to bring a guilty verdict in a federal case?

Ashcroft should get out of the way and let judges exercise judgment.”

So, what happens to judges that are reported for deviating from the sentencing guidelines? According to a Baltimore Sun editorial, that remains to be seen. But the Sun editors have a bad feeling about what’s coming:

“Here’s another chilling prospect: Judges who veer from the guidelines will be reported to Congress. And then what? The House Judiciary Committee already has threatened to subpoena the sentencing records of a federal judge in Minnesota.”

The Sun editors also point out that, of about 19,000 sentences handed down since October of 2000 that were more lenient than the guidelines, “nearly half resulted from requests from the government.”

“Why is that important to know? Because it points up the control prosecutors already have in sentencing. If judges are precluded from diverging from the sentencing guidelines, then prosecutors would be the ones determining who gets a lesser sentence by virtue of the deals they cut with defendants.

…

Reducing a judge’s ability to render a just sentence based on his or her assessment of the facts contravenes the tenets of the American judicial system. But Mr. Ashcroft and his friends in Congress seem intent on doing just that.”

And the situation is likely to only get worse, the Sun notes — the U.S. Sentencing Commission has been ordered by Republicans in Congress to find ways to “significantly reduce a judge’s ability to lower sentences set by the guidelines.”

So, is everything falling Big John’s way? Maybe not. Elaine Cassel, writing for Counter Punch, argues that Ashcroft’s outrageous antics are actually distancing him from many Republicans. His continual attack on the Constitution, she asserts, may be the very thing that brings about his political demise:

“I am not sure there is a Constitutional basis for the Executive Branch (Ashcroft & Co.) prosecuting the Judicial Branch for not giving harsh enough sentences. But then, Ashcroft never let a little detail like the law or the Constitution stop him.

Who will win this showdown? Considering that King George has Chief Justice to thank for his crown and throne, might Chief Prosecutor be sacrificed for the sake of the realm? Bush has one goal and only one–to get reelected. John Pointdexter got his walking papaers for pushing policies that were beyond the pale of what even Bush lovers could tolerate. Now Ashcroft is fast becoming the King’s most reviled retainer and one whom many Republicans wish to distance themselves from. Public interest lawsuits are mounting against the man who has been on a mission to destroy the Constitution.

Bring it on, Big John. The more outrageous your proposals, the sooner we send you back to Missouri.”