ASHCROFT INTENSIFIES CAMPAIGN AGAINST JUDGES' SOFT SENTENCES

Stepping up the Justice Department's battle with federal judges over
sentencing guidelines, Attorney General John Ashcroft has directed
government lawyers to report on judges who give out softer sentences and to
start appealing those sentences in far higher numbers.

The move, circulated in an internal memo last week, was anticipated under a
measure known as the Feeney amendment, adopted by Congress in April to
strengthen judges' adherence to new, stricter sentencing guidelines. Many
judges, including U.S. Chief Justice William Rehnquist, view the new rules
as a further attack on their independence.

"The Justice Department is telling us that every defendant should be treated
in the same way, that there should be no flexibility to deal with
individuals," says U.S. District Judge John S. Martin Jr. of Manhattan.
Judge Martin announced his resignation from the bench in June, citing
judges' increasingly limited sentencing discretion.

Judges' criticism of the Justice Department and the Congress has been at a
fever pitch since President Bush signed the Feeney amendment into law. The
measure makes it easier for appeals courts to lengthen sentences set by
judges that are shorter than those in the federal guidelines. It puts
federal judges on notice that they'll be challenged on such sentences and be
reported to Congress for giving them.

Congress gave the Justice Department, which championed and wrote the
legislation, 90 days to come up with a plan to enforce the rules, a deadline
that arrived last week. Lawmakers gave the U.S. Sentencing Commission, an
independent agency created by Congress in 1987 to create federal sentencing
policies and practices, 180 days to formulate its own response.

Mr. Ashcroft's order directing U.S. attorneys to appeal far more "downward
departures" by judges -- meaning sentences shorter than the guidelines --
adds fuel to an already bitter dispute between the federal judiciary and the
administration.

Mr. Rehnquist has warned that the Feeney amendment will "seriously impair
the ability of courts to impose just and responsible sentences." But the
Justice Department and members of the House Judiciary Committee believe that
judges have been flouting sentencing guidelines for years and that
legislation was required to end the practice.

Judges' departures from the guidelines have risen in recent years and vary
sharply from state to state. For example, judges in the Eastern District of
New York, which includes Brooklyn, issued sentences shorter than the
guidelines in more than 25% of all cases in fiscal 2001, while judges in
South Carolina did so in only 2% of all cases. The national rate in fiscal
2001, the last year for which statistics are available, was 18.3%.

"The whole purpose of the [sentencing commission] was to minimize disparity
among similarly situated defendants," says Bill Mercer, the Montana U.S.
attorney and chairman of Mr. Ashcroft's advisory committee on sentencing
guidelines.

Many judges have voiced dissatisfaction with guidelines they view as
onerous, particularly those that establish mandatory minimums for drug sales
and possession. The guidelines are widely credited with the four-fold
increase in the federal prison population since 1987. More than half of
federal inmates are now drug offenders.

While Congress is calling for ever-greater prison sentences for almost all
crimes, the trend in the states is going the opposite way. Squeezed by tight
budgets, many states have repealed mandatory minimum sentences in the last
three years.

Since 1987, Congress has rarely exercised its power to set mandatory minimum
sentences for federal crimes -- usually leaving this practice to the U.S.
Sentencing Commission, which was created for the purpose. But the Republican
majority in Congress, along with the Justice Department, has been
increasingly uncomfortable with letting judges exercise discretion without
recourse. "Feeney brings the whole Sentencing Commission closer to
collapse," says Frank Bowman III, a professor of law at the Indiana
University School of Law. "It is being set up as an agency that will do
studies of judges who depart from guidelines, rather than as a rational
policy-making body."

In February, the Senate considered and unanimously passed a bill focused on
enhancing prosecution of child pornographers. The House took up the measure
in March, adding a nationwide warning system for abducted children known as
"Amber Alert." On March 27, Representative Tom Feeney, a Florida Republican,
proposed amending the bill to address what he called "long-standing and
increasing problems of downward departures from the Federal Sentencing
guidelines."

Members of the Sentencing Commission viewed the Feeney amendment as an
end-run around the independent agency, which was never notified about it in
advance. "Clearly, you'd like to have had a lot more debate," says
Commissioner Michael O'Neill, a criminal law professor at George Mason
University.

Mr. Ashcroft said in last week's memo that downward departures should be a
"rare occurrence" -- except in cases where prosecutors are recommending them
because of the cooperation of the accused. Prosecutors are themselves
responsible for about half of all downward departures from sentencing
guidelines. Prosecutors frequently offer crimes carrying lesser sentences in
exchange for plea deals in a variety of criminal and immigration cases.

The Justice Department has rarely appealed downward departures issued by
federal district judges, especially since the Supreme Court's 1996 Koon
decision, which held that appeals courts should defer to lower courts in
departure cases.

For fiscal 2001, federal district judges departed downward in 10,026
sentences, about as many as were sought by prosecutors in connection with
plea agreements in exchange for cooperation. The Justice Department appealed
fewer than 50 of the judges' departures that year.

"We hope there'll be more objections" in cases where judges have departed
downward without the agreement of prosecutors and "more cases brought to our
attention," said a Justice Department lawyer. Requests for appeal by federal
prosecutors must be approved by the Solicitor General's Office.

Judge Martin said so few departures are appealed because "most assistant
U.S. attorneys recognize they're appropriate," though they may argue
otherwise.

Rep. John Conyers Jr. of Michigan, the Judiciary Committee's senior
Democrat, said through a spokesman, "John Ashcroft seems to think
Washington, D.C., can better determine a fair sentence than a judge who
heard the case or the prosecutor who tried it. The effort by DOJ to compile
an 'enemies list' of judges it feels are too lenient is scary to say the
least."

The memorandum, signed by Mr. Ashcroft, says department attorneys "have an
affirmative obligation to oppose any sentencing adjustments, including
downward departures, that are not supported by the facts and the law. This
obligation extends to all such improper adjustments, whether requested by
the defendant or ... by the court."

Mr. Feeney himself says he was simply the "messenger" of the amendment
bearing his name, which was drafted by two Justice Department officials,
Associate Deputy Attorney General Daniel Collins and Jay Apperson, counsel
to the House Judiciary Committee. The committee has tangled with several
judges Republicans believe have crossed the line, including U.S. District
Judge James Rosenbaum of Minnesota, who the Justice Department says has
often imposed sentences below mandatory minimums. House Judiciary Committee
members have threatened to subpoena sentencing records from Judge Rosenbaum
over the issue.

U.S. District Judge Nancy Gertner of Massachusetts, a state where downward
departures exceed the national average, calls the changes brought about by
the Feeney amendment "very sad" because of its role in "eliminating a
judge's role in checks and balances." She says the Justice Department
policies will surely burden appeals courts, which will then make decisions
based on "much more limited knowledge" of individual cases than trial
judges.

Jess Bravin contributed to this article.