Report: Ashcroft Memo Calls For Some Judges To Be Reported

JUDGES SEE SENTENCING DISCRETION ON A DECLINE

Some Critics Have Questioned What They See As Encroachment By The
Legislative And Executive Branch On The Federal Judiciary's Independence.

When James Turk was appointed to serve as a federal judge by President
Nixon 31 years ago, the sentencing of defendants in criminal cases was left
to his discretion.

Since then, the role federal judges can play in determining the sentences
of the defendants who come before them has steadily diminished,
particularly after federal sentencing guidelines became law in 1987.

Federal judges are generally expected to sentence within the guidelines,
which were developed at Congress' request by an independent agency called
the U.S. Sentencing Commission.

Not doing so leaves them open to appeal of their decisions. But some judges
around the country, including Turk, have criticized guidelines such as the
ones that require mandatory minimum sentences.

"There are no two crimes exactly alike, and no two people exactly alike,"
Turk said.

The latest development in the effort to universalize the sentences
defendants around the United States receive for the same crimes came to
light last week. Attorney General John Ashcroft issued an internal memo
July 28 to U.S. attorneys around the country asking them to report judges
who sentence defendants to shorter terms than called for under the
guidelines, according to The Washington Post.

Some critics have questioned what they see as encroachment by the
legislative and executive branch on the independence of the federal
judiciary, which is mandated in the U.S. Constitution's checks and balances.

Ashcroft's directive came in the wake of the passage of legislation earlier
this year that restricted the ability of federal judges to depart downward
from sentencing guidelines in the case of child pornographers.

The Washington Post reported that critics of the legislation include the
American Bar Association and U.S. Supreme Court Chief Justice William
Rehnquist, who warned that the law would "seriously impair the ability of
courts to impose just and responsible sentences."

Turk said in an interview that as things stand, he has only a small amount
of discretion when it comes to sentencing, and he anticipated that the
legislation would further infringe on that discretion.

"One of the things a federal judge is paid for is to do sentencing," Turk
said. "And if it's all just a mechanical means, you don't even need the judge."

Turk said most criminal cases result in deals made between federal
prosecutors and defense attorneys.

"The discretion is transferred from the federal judge to the U.S.
Attorney's Office," Turk added. U.S. attorneys are the chief federal
prosecutors in the areas of the United States to which they are appointed,
and they report to the U.S. attorney general.

While Turk said he has no problems with federal prosecutors in the Western
District of Virginia, he said he thinks the transference of that discretion
is "just bad policy." He also said that he thinks mandatory minimum
sentencing is a bad idea.

Turk said he has departed from the guidelines occasionally, and that those
cases have often involved extreme health or family circumstances.

In most cases, federal prosecutors have not appealed his departures, he
said. But he added that he has been reversed by the U.S. 4th Circuit Court
of Appeals about four times for sentencing a defendant to less than the
federal guidelines called for and had to resentence the defendants in those
cases.

Ashcroft's directive is likely to resonate much more profoundly in areas of
the country where the courts are considered more liberal.

Federal courts in the Western District of Virginia are part of the 4th
Circuit, which is widely considered the most conservative circuit in the
country. Western District judges departed from the guidelines less than in
any other district, aside from the Eastern District of Kentucky, according
to the U.S. Sentencing Commission. The 4th Circuit includes Maryland,
Virginia, West Virginia, North Carolina and South Carolina.

Federal judges in the Western District departed in only 1.8 percent of the
cases in fiscal year 2001, the last year for which figures were available.
That figure does not include instances in which judges have sentenced
defendants to less time based on recommendations from federal prosecutors,
which happened 30.1 percent of the time in fiscal year 2001.

In the 4th Circuit as a whole, federal judges sentenced defendants to less
than the guidelines called for in 5.2 percent of the cases during fiscal
year 2001, according to the U.S. Sentencing Commission.

By contrast, in the 9th Circuit, which is widely considered the most
liberal circuit in the country, federal judges in Arizona departed below
the guidelines in more than 62 percent of the cases. An appeals court in
that circuit, in San Francisco, drew fire across the nation when it ruled
last year that having schoolchildren recite the phrase "under God" in the
Pledge of Allegiance was an unconstitutional government promotion of religion.

In the case of pornographers, federal judges in the 4th Circuit were
already beating the national average in 2001, sending 95.2 percent of
defendants convicted in pornography cases to prison, while the national
average was 87.9 percent.

U.S. District Judge James Jones, who presides in Abingdon, said Ashcroft's
directive did not make a difference to him.

"It's rare, but it's still available," Jones said of the option to sentence
a defendant to less than the guidelines call for. "If I think it's
appropriate in a case, then I'm going to do it, regardless of whether the
U.S. attorney reports it or publicizes it or not."

He pointed out that federal judges are appointed for life, and, as such,
"we can make decisions without fear of losing our job."

Federal judges "ought to take their oath of office seriously and not care
whether a public official doesn't like their decisions," Jones said.

Jones added that the 4th Circuit already has a lot of legal rules that
restrict the ability of federal judges to depart downward.

Some of the other federal judges in the Western District - Samuel Wilson,
Jackson Kiser and Glen Williams - would not comment for this story.

U.S. Attorney John Brownlee did not respond directly to the question of
what changes Ashcroft's directive might bring locally.

"I view this as an effort of the Justice Department to try and maintain
some national review of appeals so they can have a consistent national
policy for appellate review, so that nationwide our efforts are
consistent," Brownlee said.

It is up to lawyers in the Justice Department, not local federal
prosecutors, to decide whether to appeal a judge's sentencing decision.

But Roanoke defense attorney Tony Anderson said he saw Ashcroft's directive
as "a clear attempt at the violation of the separation of powers."