No bargain here

October 07, 2003

IT'S TOO SOON to know whether U.S. Attorney General John Ashcroft's latest edict will produce fewer plea bargains, more trials and grinding gridlock in federal courts. But at least this much is known: Criminal defendants are going to face tougher charges and the harshest sentences that go along with them.

That may suit Mr. Ashcroft's tough-on-crime image. It may even enhance it. But will justice be served as a result? That should be the test.

Mr. Ashcroft has issued a new policy to federal prosecutors that requires them to charge "the most serious, readily provable" offense. The directive - nearly identical to one issued by a previous Republican U.S. attorney general - will narrow a U.S. attorney's ability to plea bargain a case. It virtually prohibits the practice of charging a lesser crime or agreeing to a lower sentence - avenues pursued to win convictions and move cases through the system. Now, prosecutors can deviate from Mr. Ashcroft's direction in limited circumstances, the most obvious being to gain substantial help in cracking a criminal case.

The attorney general issued the policy under the banner of ensuring "equity, fairness and uniformity" in the system. All things being equal, the bank robber in Des Moines should be subject to the same charge and sentence as the bank robber in Manhattan. That principle sounds good on its face, but reality has a vexing way of intervening.

Prosecutors should have the discretion and flexibility to proceed as the facts, evidence and circumstances merit. But if taken at its word, the Ashcroft policy could leave little room for that. It overturns a policy from his predecessor, Janet Reno, that allowed prosecutors to consider whether a sentence was appropriate to the defendant's conduct. That, says a U.S. attorney who supports the Ashcroft policy, would allow one person's view of the punishment to dictate the course of a case.

Mr. Ashcroft's spokesmen insist adherence to his policy won't significantly alter the numbers of plea agreements. Yet how can it not? The overwhelming majority of cases in the federal courts are handled just that way. For fiscal year 2001, the most recent for which figures are available, guilty pleas accounted for 96.6 percent of the 59,672 cases that were adjudicated.

The new policy mirrors one issued by Attorney General Richard L. Thornburgh, who served under President Bush's father. The difference today is that federal sentencing guidelines have been attacked as unfairly harsh, efforts are under way to restrict a federal judge's ability to deviate from the guidelines, and federal prisons are holding record numbers of inmates.

If the past is any indication, plea bargains will continue; the efficient operation of the judicial system depends on it. And we expect that prosecutors will continue to exercise their independence, intelligence and best judgment - in each and every case - to ensure that the public is well served.

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