ASHCROFT IS JUST CARRYING OUT THE LAW

Editorial Criticism Was Deceptive

CUTTING through your proselytizing editorial of Aug. 12, "John Ashcroft's
black-robed blacklist," and going to the chase, two glaring errors appear.

First, your analogy of Attorney General Ashcroft to Sen. Joe McCarthy, and
second, your allegation that Ashcroft, by requiring U.S. attorneys to
report "downward departures" to the Department of Justice, is engaged in an
attempt to "intimidate and punish" federal district judges.

First, McCarthy used no "blacklist to intimidate and punish Americans with
certain political beliefs." McCarthy was a member of the Senate Permanent
Subcommittee on Investigations and, as such, was charged with investigating
the federal government.

His role in that subcommittee was exclusively the investigation of loyalty
risks working for or with the federal government, and the subjects of his
investigation were federal officials whose duty it was to remove those
loyalty risks from sensitive government positions, and who were allegedly
derelict in that duty. The "blacklists" were unrelated to McCarthy, but
attributable to the House (of Representatives, not the Senate) Un-American
Activities Committee and its questioning of members of the Hollywood set,
the Hollywood Ten in 1947, as to their particular associations with the
Communist Party. There is not now, nor has there ever been found, a
connection between McCarthy, whose first year in the Senate was 1947, and HUAC.

Second, as to your editorial statement that Ashcroft requires U.S.
attorneys "to collect information on judges who sometimes 'depart downward'
from mandatory sentencing guidelines set up by Congress, and to report that
information to Washington," you did not tell "the rest of the story." To
understand the concept of "downward departure," one must first understand
something about the Federal Sentencing Guidelines.

When it passed the Sentencing Reform Act of 1984, the Congress provided for
the development of sentencing guidelines that would meet the basic purposes
of criminal punishment: deterrence, incapacitation, just punishment and
rehabilitation. One major objective was to seek reasonable uniformity in
sentencing across the breadth and width of this great land.

The authority to review and rationalize the sentencing process, as well as
to draft the guidelines, was given to the U.S. Sentencing Commission, an
independent agency in the judicial branch. After extensive hearings,
deliberations and consideration of substantial public comment, the
commission submitted the initial guidelines to the Congress in April 1987.
After a period of congressional review, the guidelines took effect in
November 1987, and have been amended annually since. The guidelines have
the force and effect of law.

They take into consideration several factors to come up with a sentencing
range, usually expressed in a term of months with a floor and a ceiling.
There are provisions for sentencing outside the range if the court finds
that circumstances exist that were not taken into account by the commission
when it formulated the guidelines. Those circumstances can be either
aggravating (resulting in an "upward departure," increasing the range
allowed for imprisonment), or mitigating (resulting in a downward
departure, decreasing the range).

One of the mitigating factors considered by the court is whether the
defendant has provided "substantial assistance" to law enforcement.
Usually, a motion by the government to recommend a departure downward is a
promise made by the government and contained in a plea agreement with the
defendant, also signed by the defense counsel, in which a defendant agrees
to plead guilty to one or more charges. At sentencing, if the defendant has
fulfilled his promise to substantially assist the government, the
government's attorney moves the court for a downward departure.

In your editorial, you failed to report that, under the Prosecutorial
Remedies and Other Tools to end the Exploitation of Children Today Act of
2003, Congress has mandated that the Justice Department report every case
in which there is a downward departure (unless that departure is for
substantial assistance to law enforcement), unless, not later than 90 days
after the date of enactment of the PROTECT Act, the department submits to
Congress a detailed statement of policies concerning downward departures
that it has adopted in response to the PROTECT Act.

Chief Justice William Rehnquist told the Federal Judges Association Board
of Directors meeting on May 5, "Congress has recently indicated rather
strongly, by the Feeney Amendment, that it believes there have been too
many downward departures from the sentencing guidelines. ... Such a
decision is for Congress, just as the enactment of the sentencing
guidelines nearly 20 years ago was."

So, Ashcroft is not engaged in some covert, nefarious effort to undermine
the federal judiciary, as you suggest in your editorial. The entire process
is aboveboard, with the guidelines being a product of the legislative and
the judicial branches of our government, and U.S. attorneys following the
law by reporting downward departures up their chain of command to the
Justice Department. Federal judges are subject to appellate courts'
scrutiny; if they have applied the guidelines properly, their departures
will be upheld. So much for Ashcroft striking fear into the federal judiciary.

Is it too much to ask of you to present the entire truth to your readers,
rather than take sides and present a skewed editorial based on the
deceptive presentation of half-truths, misrepresentations and omissions?

JOHN WAGNER of Bent Mountain, now retired, was an assistant U.S. attorney
in Houston.