PLEA BARGAINS A USEFUL TOOL

Attorney General John Ashcroft knows how to play tough-on-crime politics. He is
raising serious doubts, however, about whether he understands how to actually
fight crime in the real world outside the Beltway.

Ashcroft last week issued a directive to federal prosecutors in South Florida
and elsewhere, restricting their use of plea bargains and requiring them in the
vast majority of cases to seek the most serious charges they can prove. The
move was part of a campaign by the Justice Department to counter what it
considers excessive leniency by some prosecutors and judges.

There's no denying such leniency exists and is a problem. But Ashcroft has come
up with a "cure" that is likely to be worse than the disease.

Ashcroft has failed to learn from the experience of Congress, which passed
mandatory minimum sentencing laws in a similar effort to combat excessive
leniency. Those laws have clogged the prison system with low-level drug
offenders and have sometimes resulted in the release of more dangerous
prisoners to make room for them. In recent weeks, two U.S. Supreme Court
justices, Stephen Breyer and Anthony Kennedy, have spoken out against mandatory
minimum sentencing.

Ashcroft apparently wasn't listening, for his directive does to prosecutors
what mandatory sentencing did to judges. It takes away their discretion.

Plea bargaining is an essential tool in the fight against crime. It enables
prosecutors to secure the cooperation of defendants, often resulting in the
conviction of more seriously culpable criminal associates.

No less importantly, plea bargains help an already crowded court system keep
from collapsing under the weight of too many trials. More than 90 percent of
federal criminal cases end in plea bargains. Ashcroft's directive invites
disaster by seeking to put so many more defendants on trial.

Discretion is a double-edged sword. It can be and has been abused by judges and
prosecutors alike. But it also allows them to look with a clear eye at the
facts of each individual case and make decisions appropriate to that case. This
is essential to the administration of justice.

Ashcroft's directive undoubtedly plays well in the anti-crime political arena.
But prosecutors are on the front lines in the war on crime, and the directive
does them no favor. He should reconsider.