U.S. Attorneys Required to Seek Maximum Sentence

The Justice Department adopted guidelines Monday that require federal prosecutors to seek the toughest punishment, reversing a Clinton administration policy that gave them more discretion.

The law-and-order initiative comes as Congress has been imposing new limits on the ability of judges to depart from federal sentencing guidelines, and as the department has been more closely monitoring judges’ sentences for purposes of appealing ones they consider to be too lenient. The new policy, officials said, shows that the department is getting its own house in order when it comes to ensuring equal -- if uncompromising -- justice for all.

“Like federal judges, federal prosecutors nationwide have an obligation to be fair, uniform and tough,” Atty. Gen. John Ashcroft said in a speech in Milwaukee, announcing the change. Under the new policy, he said, “federal prosecutors must charge and pursue the most serious, readily provable offense or offenses that are supported by the facts of the case except in limited, narrow circumstances.”

The action is the latest example of the Justice Department limiting the discretion of federal prosecutors in the field in the name of ensuring uniformity in how the nation’s laws are applied. Ashcroft has overturned the decisions of prosecutors in New York and elsewhere, for instance, to not seek the death penalty in several cases.

While Justice Department officials said the policy change would ensure a more just system, defense lawyers said it would remove an important safety valve that has permitted prosecutors to take into account individual circumstances in crafting their cases.

And some legal experts said the extent to which prosecutors’ charging decisions have led to disparate treatment of similarly situated defendants is not clear.

“We really don’t know the extent of charging inequities. It is very hard to look at any publicly available information and get a sense of what the relevant universe is and how different people are treated,” said Danny Richman, professor of law at Fordham Law School in New York and a former federal prosecutor.

Much of the information about alleged disparities, he said, is anecdotal. “You can ask a defense lawyer in a particular jurisdiction and he will probably have a rough idea about different practices” affecting clients who committed roughly the same offense, Richman said. “But putting it together in any rigorous way is completely beyond the ability of any outsider, and it may be even beyond the Justice Department to determine.”

The new policy is a throwback to one adopted in the first Bush administration by then-Atty. Gen. Richard Thornburgh after the Supreme Court decision in 1989 upholding the constitutionality of the 1984 federal law that created the U.S. Sentencing Commission. The commission created sentencing guidelines for all federal offenses.

In subsequent years, some prosecutors rebelled against what they viewed as overly harsh effects of a mechanical application of sentencing laws, and began charging less aggressively.

That culminated in a memorandum by former Atty. Gen. Janet Reno early in the Clinton administration that permitted more flexibility in charging and plea negotiation decisions. The memo allowed prosecutors to make an “individualized assessment” of the extent to which particular charges fit the circumstances of the case and maximized the effect of federal resources on crime, among other factors.

Justice Department officials said the new policy contains several exceptions that preserve the ability of prosecutors to file charges below the maximum allowable, including instances where defendants cooperate with authorities as part of plea agreements. The policy also permits U.S. attorneys’ offices, subject to Justice Department approval, to continue to operate “fast-track” programs that are used in many districts to quickly process large numbers of cases, such as programs in San Diego and other border cities that deal with immigration-law violators.

Some criminal law experts said the change in the charging guidelines could prove to be more symbolic than real because the exceptions that are maintained, such as those for cooperating defendants, are so broadly construed.

“This may operate less as a formal set of restrictions than as a kind of general managerial signal that we are going to be looking over your shoulders from Washington,” said Robert Weisberg, a professor at Stanford Law School.

“Prosecutors are probably going to have to taper their decisions better -- not so much with formal legal charging papers but with internal record-keeping letters to the file” to satisfy their Justice Department bosses that decisions were not being made subjectively, he said.

Justice Department officials noted that, under the new regime, prosecutors retain full discretion in deciding which cases to bring, and they said that a panel of U.S. attorneys that advises Ashcroft supported the change. While they did not have statistical evidence of widespread unequal treatment, they said they had gained an understanding of inequities in the years since the sentencing law was declared valid.

“We have learned a great deal about how cases are charged and resolved and sentenced,” said William Mercer, U.S. attorney for Montana and chairman of the advisory panel’s sentencing subcommittee, at a briefing for reporters in Washington. “This was a reflection of those observations that many of us have had or read about: that we have had too much inequity based on existing practice.”

The notion of a harder tack by prosecutors also raised the possibility of fewer plea bargains and more trials in an already overloaded federal court system.

But Mercer said that, if history repeats itself, that shouldn’t necessarily occur. The number of federal trials in the wake of the Thornburgh memo, he said, actually declined, and he expects penalties in some number of cases to increase.

“There should be a subset of cases that are treated in a fashion that results in a higher sentence than what occurred historically,” he said.