WHEN SENTENCES DON'T MAKE SENSE

On July 28 Attorney General John Ashcroft ordered U.S. attorney's
offices around the country to report to Justice Department
headquarters in Washington virtually every instance in which a federal
judge imposes a criminal sentence below the range specified by federal
guidelines against the wishes of the prosecution. His memorandum also
tightens the department's centralized control over the plea bargaining
practices of U.S. attorney's offices around the country. The national
media have portrayed the Ashcroft memorandum as, in the words of the
Wall Street Journal, "stepping up the Justice Department's battle with
federal judges over sentencing guidelines." In fact, it's not quite
that simple.

Since 1987 federal sentencing has been governed primarily by the
Federal Sentencing Guidelines. The guidelines were written and are now
annually amended by the U.S. Sentencing Commission, a politically
neutral body of experts accountable to Congress. They were in part a
reaction to the perception that the previous system produced
unjustifiable sentencing disparities by giving too much discretion to
district judges. They constrained judicial discretion by use of a
"grid" that set presumptive sentences according to the seriousness of
the offense and the defendant's criminal history.

But the architects of the guidelines recognized that no set of
national rules could prescribe the "correct" sentence for every
defendant. Therefore, each position on the grid covers a range of
sentences, stated in months. The district judge finds the facts
necessary to apply the guidelines but also has the legal power either
to sentence the defendant anywhere within the range or to "depart" --
to sentence a defendant above or below the guideline range if he or
she finds certain aggravating or mitigating factors. In addition, the
guidelines allow the prosecution to request downward departures to
reward cooperation against other defendants or to achieve a just sentence.

If this system were working as designed, departures would be
relatively rare. But in 2001, almost 36 percent of federal defendants
received downward departures, while less than 1 percent received
upward departures. Does this mean federal judges are soft on crime and
must be made to obey the law? Again, it's not that simple.

First, roughly 80 percent of the more than 19,000 downward departures
granted each year are requested by the government as a result of the
defendant's cooperation or for some other reason. Moreover, the
government consents to many of the departures even though it has not
affirmatively requested them. The real story on departures is not that
judges sometimes depart against the wishes of prosecutors but that
prosecutors and judges agree to reduce sentences by departure in more
than 25 percent of all federal criminal cases.

Second, departures are only one piece of a pervasive national pattern
of manipulating the guidelines. A departure below the guidelines range
will certainly reduce a defendant's sentence. But a sentence can be
reduced equally effectively by manipulating the fact-finding process
that decides where a case goes on the "grid." To give a crude example,
if a defendant actually sold five kilograms of cocaine but is found
for sentencing purposes to have sold only four, his sentencing range
will be 8 to 10 years instead of 10 to 12. This reduction can be
accomplished if the prosecutor stipulates, as part of a plea
agreement, to less cocaine than he could prove, or if the judge finds
that, despite evidence of five kilos, only four have been proven. As
my colleague Michael Heise and I have shown in a pair of studies in
the Iowa Law Review, the length of the average federal drug sentence
has been declining since the early 1990s, largely as a result of
choices made by both prosecutors and judges during plea bargaining and
sentencing. And sentence manipulation is not confined to drug cases.

The Justice Department is well aware of its own people's complicity in
evading the guidelines.. The unreported part of the story on the
Ashcroft memorandum is that half of it consists of directives
dramatically limiting the discretion of U.S. attorney's offices to
strike guideline-evading sentence bargains. Thus, on the surface the
Ashcroft memo appears to be an evenhanded effort to prevent government
lawyers from manipulating sentencing law -- and to encourage them to
appeal the decisions of judges who do so.

The flaw in both the Ashcroft memo and the PROTECT Act of 2003 --
which seeks to restrict departures and to which the Ashcroft memo was
a response -- is that they dogmatically insist sentencing law be
followed to the letter, without pausing to ask why hard-nosed federal
prosecutors and crusty federal judges (at least half of whom were
appointed by Republicans) are colluding to evade that law on a massive
scale. The truth, as Supreme Court Justice Anthony Kennedy told the
American Bar Association recently, is that federal sentences are
harsher and the guidelines less flexible than they should be. For over
a decade, the legal professionals who apply the guidelines to real
people have been expressing this truth through their behavior. But
efforts by the Sentencing Commission to amend the guidelines
accordingly have been blocked by right-wing Republicans and Democrats
determined never to be outflanked to the right on law- and-order issues.

The proper course is not to insist that flawed laws be rigidly
enforced. Nor is it to assert, as the PROTECT Act and the Ashcroft
memo implicitly do, that only members of Congress and functionaries at
Justice Department headquarters in Washington are wise enough to set
sentencing policy. Instead, both the Justice Department and Congress
should listen to what the professionals are saying, and allow the
Sentencing Commission to adjust the guidelines. Once that is done, it
will be entirely proper to insist that the guidelines be strictly applied.

The writer is a law professor at Indiana University School of
Law-Indianapolis. He was a federal and state prosecutor for 13 years
and served as special counsel to the U.S. Sentencing Commission.

He will answer questions about this column during a Live Online
discussion at 11 a.m. today at www.washingtonpost.com.