Newsbrief: Justice Department Orders Government Lawyers to Appeal "Soft" Sentences, Report on Judges Who Issue Them 8/8/03

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In a memo issued July 28 under the signature of Attorney General John Ashcroft, the Justice Department has ordered US Attorneys to appeal any and all sentences that are below federal sentencing guidelines -- except those approved of by federal prosecutors. According to the Wall Street Journal, which broke the story Wednesday, Justice is merely implementing a congressional directive dreamed up and drafted deep in the bowels of the department itself with the collaboration of staunch crime fighting Republicans in the House Judiciary Committee.

In an amendment to the US Attorneys' Manual, Ashcroft wrote that federal prosecutors "have an affirmative obligation to oppose any sentencing adjustments, including downward departures, that are not supported by the facts and the law. This obligation extends to all such improper adjustments, whether requested by the defendant or... by the court."

The change was required under the Feeney amendment (, which was adopted by Congress in April after being piggy-backed onto the unrelated but politically un-opposable federal "Amber Alert" bill. The Feeney amendment makes it easier for federal prosecutors to appeal "downward departures," as sentences below the guidelines are known, and requires the Justice Department to report judges who grant such departures to Congress. But Rep. Feeney (R-FL) was just carrying Ashcroft's water, or, as he told the Wall Street Journal, he was merely the "messenger" for a measure drafted by two Justice Department officials, Associate Deputy Attorney General Daniel Collins and Jay Apperson, counsel to the House Judiciary Committee.

Democrats assailed the move. Rep. John Conyers Jr. (D-MI), senior Democrat on the Judiciary Committee, told the Journal, "John Ashcroft seems to think Washington, DC, can better determine a fair sentence than a judge who heard the case or the prosecutor who tried it. The effort by DOJ to compile an 'enemies list' of judges it feels are too lenient is scary to say the least." And Sen. Edward M. Kennedy (D-MA) told the Washington Post Ashcroft was engaged in an "ongoing attack on judicial independence" and encouraging "a blacklist of judges who impose lesser sentences than those recommended by the sentencing guidelines."

Criticism of Congress and the Justice Department over the Feeney amendment was already at a "fever pitch," the Journal reported. Critics include US Supreme Court Chief Justice William Rehnquist, who has said the Feeney amendment will "seriously impair the ability of courts to impose just and responsible sentences."

Federal judges have long criticized mandatory minimum sentences and sentencing guidelines that force them to send low-level, nonviolent drug offenders to prison for years or often decades. Such offenders now make up more than half of all federal prisoners. And downward departures have been increasing, up to 18.3% of all sentences in 2001, according to the US Sentencing Commission, although half of them are requested by prosecutors for defendants who testified against their partners or otherwise cooperated.

Up to now, the Justice Department had rarely appealed downward departures, doing so in only 19 of 10,026 cases in 2002. Now the Bush administration and congressional hard-liners have ensured that prosecutors will appeal them all.

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