Judges on Trial
Adrian Acu

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.