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New charging directive undermines justice

By Shawn Halbert

Shawn Halbert

Attorney General John Ashcroft's Sept. 2003 memorandum regarding the charging and disposition of criminal offenses requires that federal prosecutors charge and pursue "the most serious, readily provable offense or offenses that are supported by the facts of the case." While the new DOJ policy purports to establish "fair and reasonably consistent policies . . . concerning what charges to bring and how cases should be disposed," it is instead a misguided directive that evinces a lack of trust in federal prosecutors and judges and ultimately leads to the imposition of longer mandatory sentences.

The memorandum reveals a fundamental mistrust of prosecutors who handle cases on a daily basis, a mistrust that is at odds with the fundamental principle of prosecutorial discretion. Further, while the goal of equality in sentencing is laudable, such "equality" is sought only by imposing the longest possible sentences in all cases. Accordingly, the new policy further limits the power of federal judges to lower sentences, even in exceptional cases in which departures are encouraged under the sentencing guidelines.

Not a single one of the exceptions to the new DOJ policy addresses the fairness or equity of the sentence that would result if the directive is followed. Rather, the aptly named "Limited Exceptions" relate solely to expediency for the government and are confined to (1) cases where the sentence would not be increased by filing more charges, (2) "Fast-track" programs that allow the government to pursue a less burdensome "expedited disposition program," (3) cases that are not "readily provable," (4) rare cases involving cooperation with the government, (5) limited circumstances involving statutory enhancements, and (6) "other exceptional circumstances" such as where a case would over-burden the government.

The fifth "exception" to the directive is a misnomer, as it requires prosecutors to take affirmative steps "to ensure that the increased penalties resulting from specific statutory enhancements. . . are sought in all appropriate cases." The two most common statutory enhancements require mandatory sentences: §841 of Title 21 provides that when the government files notice of prior convictions, the mandatory minimum sentences are sharply increased, including to mandatory life imprisonment for crimes including non-violent drug offenses; §924(c) of Title 18 provides for mandatory consecutive sentences of up to life imprisonment where a gun (even unloaded or inoperable) is merely possessed in certain circumstances.

There are several flaws in the reasoning behind the new policy. First, the policy unduly limits the prosecutorial discretion that permits each prosecutor to make reasoned and just decisions about which charges to bring against a particular person. It simply does not make sense to allow a prosecutor to decline a case altogether but to restrict the prosecutor's ability to decide which charges are appropriate.

When Congress passed criminal laws, including mandatory minimums, it surely had in mind the basic principle of prosecutorial discretion, and with it, the knowledge that the most serious charges would be pursued only against those for whom such charges and the resulting sentences were appropriate. A prosecutor is supposed to make charging decisions that are in the interests of justice in light of all relevant factors. The Attorney General should respect those decisions.

Second, the DOJ policy will necessarily increase the frequency with which longer mandatory minimum sentences are imposed. Charge-bargaining most often occurs in cases involving mandatory minimum sentences, usually drug offenses. There is a growing consensus of opinion that mandatory minimum sentences are often too long and unjust. For years, judges, probation officers, defense attorneys and sometimes even prosecutors watch helplessly as offenders, most of them addicts, are given staggering and disproportionate prison terms, including mandatory life sentences. The Ashcroft memorandum exhibits a total disregard for this issue, achieving the purported goals of "equality" and "consistency" in sentencing solely by lengthening all sentences without first examining the fairness of such sentences.

Finally, the DOJ policy will further limit the power of the judiciary to impose fair sentences. Under the sentencing guidelines, which were themselves promulgated to achieve "equality" in sentencing, a court may lower a sentence to account for exceptional circumstances such as a defendant's extraordinary acceptance of responsibility, post-offense rehabilitation, aberrant behavior, extraordinary childhood abuse and mental health issues in non-violent cases.

However, in most cases with mandatory minimum sentences, the court loses its ability to decrease the sentence below the mandatory minimum, even in exceptional cases. Thus, even where all of the parties agree that a case involves factors that the sentencing guidelines have identified as encouraged bases for downward departure, the DOJ policy would require prosecutors to charge the case in such a way that the enumerated mitigating factors could not be considered either by the prosecutor in making its charging decision, or by the court at sentencing. This would eliminate consideration of factors that the Sentencing Commission determined to be legitimate mitigation factors.

If dutifully followed by prosecutors, the new DOJ policy will only serve to further undermine the pursuit of justice.

• Assistant Public Defender Shawn Halbert supervises the Oakland branch of the Office of the Federal Public Defender for the Northern District of California.

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