The Justice Department has seen many
changes in the past three years, largely due to the massive
shock that came with the September 11 attacks. Those changes
gave law enforcement personnel and prosecutors enhanced power
in the investigation and conviction of suspected criminals.
While pieces of legislation such as the Patriot Act may have
increased security in the United States, they also have given
civil rights activists reason to worry due to their consistent
infringement on individual rights.
On July 28, John Ashcroft gave those activists one more reason
to worry when he sent out a memo to U.S. attorneys, ordering
them to report to him whenever a judge gives a lenient sentence,
departing from the mandatory sentencing guidelines even when
it is not the result of a plea bargain. John Corallo, spokesman
for the Justice Department, has defended the order, saying,
"It is an effort to make sure that someone who is convicted
of a crime in California is treated no differently than a
person who is convicted of the exact same crime in Massachusetts."
Now, we are all fans of equality, but we should ask why such
a policy is being instituted at this time. In order to do
answer this question, we need to know more about mandatory
sentencing guidelines. Mandatory sentences are established
by the U.S. Sentencing Commission for the expressed purpose
of regulating sentencing while still allowing for judicial
flexibility. The judicial flexibility is allowed for special
or rare circumstances, when a judge believes that the mandatory
sentencing guidelines are inappropriate. No rigid guideline
can truly allow for a just sentencing, for it can never factor
in every little nuance in a person's life, their reasons for
committing the crime, their remorse after committing it. Why,
then, can judges not just choose the lower range of mandatory
guidelines for their sentence?
No matter how wide a range a judge is given, there is still
the chance that a judge will come upon a case where he or
she has a truly remorseful individual, or someone with extenuating
circumstances, or someone who is just deserving of mercy;
a situation where the mandatory sentence seems too harsh.
One example is cited in a recent USA Today article by Richard
Willing entitled "Judges go soft on sentences more often."
A career criminal was attempting to pawn a shotgun sometime
after his release from prison. Because it is illegal for convicted
felons to possess firearms, he was arrested. His prior convictions
had him facing a mandatory sentence of 30 to 37 months on
the possession charge, to which he pled guilty. When it came
time for sentencing, however, Judge Paul Cassel gave the criminal
18 months, reasoning that the man was trying to get rid of
the gun, and that his previous crimes were non-violent. Upon
looking at such circumstances, it seems logical that a lighter
sentence than even the low part of the mandatory sentence
range, 30 months, was a more just sentence.
With John Ashcroft's order, however, a message will be sent
which says that a judge will be placed under watch if he or
she utilizes their full faculty of reason to establish truly
just sentences based not only on a stark and standardized
view of the crime and the criminal but on a fuller view of
both. In his memo, Ashcroft writes, "The Department of
Justice has a solemn obligation to ensure that laws concerning
criminal sentencing are faithfully, fairly and consistently
enforced." The notion of equalizing punishments, which
Ashcroft and Corallo both mention as the motivation for this
order, really only makes sense if the Justice Department wants
to monitor judges who act too harshly. The Justice Department
should watch judges who are overly severe and should punish
them for inflicting cruel or unusual punishment on criminals
who are undeserving of such treatment. But are there really
good grounds for punishing judges for judging with mercy?
Richard Willing also notes in his article that about 18%
of cases that have passed through federal circuits in 2001
have had lenient sentences passed without plea bargains. This
number is certainly on the rise, as seen when compared to
the numbers in 1995, where only 8.4% of sentences were more
lenient than the mandatory range. The reasons why judges are
giving lesser sentences are still unclear, and some fear that
being too lenient means criminals will be out on the streets
faster than they should be. But the fact that more and more
judges are being lenient seems to suggest that it is not simply
a few judges advancing a more liberal agenda. If the Cassel
decision is a good indication of the decision-making that
goes into deciding to follow a more lenient course, then there
is little to fear that criminals will run rampant, for the
seriousness of the crime is taken into account. As stated
previously, there are stringent and yet reasonable restrictions
to the leeway that judges have, allowing them to be lenient
only under special circumstances, meaning that no serious
offenders will only get off with a few years in prison unless
they have an incredibly good reason. There is essentially
no reason, therefore, to limit leniency in judicial decisions.
Ashcroft's order amounts to enforcing executive control over
the judicial branch through threat of being monitored, intimidating
judges to perhaps act against their better judgment and give
unfair decisions. While it is meant to empower prosecutors,
giving them some ammunition to make an appeal if a sentence
is deemed too light, that power is bought by sacrificing some
of the independence of the judiciary. This is too high a cost.
It should be noted that Ashcroft's order comes after the
passing of an amendment that piggybacked the "Amber Alert"
law passed by President Bush earlier this year, making it
more difficult for judges to move away from mandatory sentences.
The amendment has faced opposition from the American Bar Association,
Chief Justice William Renquist, and even the U.S. Sentencing
Commission, the ones who have the greatest interest in having
their guidelines followed. The reason for their objection
is that time is needed to analyze why judges are more frequently
giving out more lenient sentences. Perhaps John Ashcroft should
also suspend judgment before encouraging judges to be harsher.