CONGRESS REQUIRES MONITORING OF SENTENCING

Your Aug. 13 editorial Judicial intimidation omitted information
crucial to Attorney General John Ashcroft's response related to
federal criminal sentencings. As Chief Justice William Rehnquist has
said:

In our federal system, Congress decides the sentencing range for an
offense, and ``Congress has recently indicated rather strongly, by the
Feeney Amendment [of the Protect Act], that it believes there have
been too many downward departures from the sentencing guidelines. It
has taken steps to reduce that number. Such a decision is for
Congress, just as the enactment of the sentencing guidelines 20 years
ago.''

Aiming to reduce unfair sentencing disparities, Congress directed the
Department of Justice to oppose inappropriate downward departures and
enacted reporting requirements. It gave the attorney general two
choices: Either delineate objective criteria for cases that might
warrant an appeal; or for all downward departures not based on
cooperation with prosecutors submit a detailed report to House and
Senate Judiciary Committees within 15 days of sentencing, followed by
a second report as to whether the solicitor general authorized an
appeal of the departure.

The second alternative was so onerous that it was imperative for the
attorney general to choose the objective-criteria option. In compiling
this list, the attorney general received the advice, input and support
of his advisory committee, on which I serve, the solicitor general's
office and other Justice Department components.

The specified reporting criteria do not compel an appeal and are based
on factors identified by Congress, such as ''the nature and magnitude
of the sentencing error, its prevalence in the district or its
prevalence with respect to a particular judge.'' Criteria also
identify a reasonable subset of cases that the government might want
to appeal, such as guideline departures based on: the defendant's
criminal history; factors identified by Congress as ''discouraged'' or
''unmentioned;'' child-victim and sexual-abuse cases; and sentences
below the statutory minimums designated by Congress.

Contrary to your suggestion, this limited subset of reported cases
will not increase or create unnecessary appeals. As before, the
attorney general, solicitor general or a deputy solicitor general must
personally authorize all such appeals. As prosecutors, we will not
have to ''report the judge to the attorney general'' to 'plea bargain
to catch a `bigger fish.' '' The Protect Act does not impact
cooperation-based departures.

Marcos Daniel Jimenez is U.S. Attorney for South Florida