September 23, 2003


Ashcroft Limiting Prosecutors' Use of Plea Bargains (ERIC LICHTBLAU, 9/23/03, NY Times)

Attorney General John Ashcroft today made it tougher for federal prosecutors to strike plea bargains with criminal defendants, requiring attorneys to seek the most serious charges possible in almost all cases.

The policy directive issued by Mr. Ashcroft is the latest in a series of steps the Justice Department has taken in recent months to combat what it sees as dangerously lenient practices by some federal prosecutors and judges.

The move also effectively expands to the entire gamut of federal crimes the attorney general's tough stance on the death penalty, which he has sought in numerous cases over the objections of federal prosecutors.

"The direction I am giving our U.S. attorneys today is direct and emphatic," Mr. Ashcroft said at a speech in Cincinnati. Except in "limited, narrow circumstances," he said, federal prosecutors must seek to bring charges for "the most serious, readily provable offense" that can be supported by the facts of the case.

But critics in the defense bar and some federal prosecutors said the new policy would serve only to further centralize authority in the hands of Washington policymakers, discourage prosecutors from seeking plea bargains and ratchet up sentences in criminal cases that may not warrant them.

"What is driving this," said Gerald D. Lefcourt, past president of the National Association of Criminal Defense Lawyers, "is that a tough-on-crime attorney general is pandering to the public, and he knows that this will play well."

One wonders what Mr. Lefcourt means. If Mr. Ashcroft is tough-on-crime then how''s that pandering to mere popular opinion? Wouldn't the concern be more justified if he were soft on crime and suddenly started doing what the people want just to curry favor?

Posted by Orrin Judd at September 23, 2003 12:11 AM

This is very interesting. The general argument about plea bargaining is that it's immoral and technically illegal, but that the modern criminal justice system can't operate without it, although the latter is more true of the state systems than the federal system.

Posted by: David Cohen at September 23, 2003 8:25 AM

Mr. Lefcourt should consider the AG's warning as part of implementing the "No Lawyer Left Behind Act of 2002".

Posted by: John J. Coupal at September 23, 2003 8:35 AM

The main problem with Ashcroft's directive is that Congress writes sloppy criminal statutes that the courts allow prosecutors to apply far beyond the context originally intended, e.g., RICO.
Too often, relatively trivial crimes could be pursued as major felonies, which would put the judicial system in gridlock and minimize the real distinctions between bad acts and vicious crimes.

Posted by: Bill Hesson at September 23, 2003 3:21 PM

The rewrite the laws, don't leave it to low level bureaucrats to read them however they want to.

Posted by: oj at September 23, 2003 3:26 PM