WASHINGTON — In a drive to challenge lenient judges, Atty. Gen. John Ashcroft says he wants to be alerted whenever a federal judge imposes a criminal sentence that is less than called for by U.S. guidelines.
In a July 28 memo to U.S. attorneys' offices across the nation, Ashcroft said he had a "solemn obligation" to ensure that the laws setting punishments for federal crimes were "faithfully, fairly and consistently enforced."
Aides to the attorney general said he was seeking accurate data on sentencing patterns. It would be troubling if judges in Massachusetts and Arizona, for example, were regularly imposing different punishments for the same federal crimes, they said.
Ashcroft also wants to know of instances in which a judge's sentence represents a "downward departure" from U.S. guidelines so the Justice Department can file an appeal with a higher court.
His memo is the latest move in a long-running dispute involving prosecutors, judges and lawmakers about who decides the proper punishments for a convicted criminal.
Until the mid-1980s, Congress set maximum and minimum penalties for a multitude of federal crimes, but entrusted a trial judge with the power to set the proper punishment for the criminal being sentenced.
But Congress took away much of a judge's sentencing authority in the Sentencing Reform Act of 1984. That measure established the U.S. Sentencing Commission and ordered it to establish detailed guidelines to set terms for a particular crime and for a defendant with a particular criminal history.
At the time, the sentencing reform law was championed by an unlikely liberal-conservative duo of Sen. Edward M. Kennedy (D-Mass.) and Sen. Strom Thurmond (R-S.C.).
While liberals said they wanted to ensure that a sentence would not turn on whether the defendant was rich or poor or white or black, conservatives said they wanted to ensure that sentences for a criminal would not turn on whether the judge was harsh or lenient.
Congress made two other crucial changes during the same period: It eliminated parole for federal crimes, so that defendants would be required to serve nearly the full prison sentence, and lawmakers imposed mandatory minimum sentences for a series of drug crimes.
By the early 1990s, many judges were complaining that they were forced to sentence too many defendants to long prison terms, even if their culpability was minimal. For example, many young women were sent to federal prison as a result of unwittingly agreeing to carry bags or luggage that contained illegal drugs.
However, the U.S. sentencing guidelines had an escape hatch, of sorts: Judges were permitted to set a sentence that was lower than called for as long as they could justify this "downward departure."
In 1996, the Supreme Court bolstered the authority of judges to impose lighter sentences in a case that grew out of the police beating of motorist Rodney G. King in Los Angeles.
After the four Los Angeles police officers were acquitted by a state jury in Simi Valley, they were tried on federal civil rights charges in Los Angeles. Sgt. Stacey C. Koon and Officer Laurence M. Powell were convicted in the second trial.
Their crime was considered to be an assault, for which the U.S. sentencing guidelines mandated a punishment from 70 to 84 months in prison. U.S. District Judge John Davies decided this was too severe, because the victim of the assault, King, had provoked the incident by fighting with the police. The judge sentenced Koon and Powell to 30 months in prison.
Prosecutors appealed that decision, and the U.S. 9th Circuit Court of Appeals ruled that the judge had erred. They ordered him to impose the full 70 months set by the federal guidelines.
Then attorney Theodore B. Olson appealed to the Supreme Court on behalf of Koon and won an unanimous ruling endorsing Davies' decision.
A federal trial judge's "decision to depart from the guidelines will in most cases be due substantial deference," wrote Justice Anthony M. Kennedy in Koon vs. United States. While the guidelines were intended to bring "evenhandedness and neutrality" to the sentencing process, they cannot take the place of a judge, he added.
The "federal judicial tradition [is] for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and punishment," Kennedy wrote.
Since then, there has been a steady, if gradual, increase in federal sentences that are lower than called for by the guidelines.
Overall, about one-third of these sentences are lower, sentencing officials say. But half of these lower sentences are requested by prosecutors. If criminals cooperate with the government, prosecutors can ask for a more lenient sentence.
"It looks as if some judges have taken the Koon decision as a license to depart from the guidelines," said Michael O'Neill, a member of the sentencing commission.
In April, Congress told the commission to gather data on the number and kinds of cases that result in "downward departures." Ashcroft's memo also seeks to gather similar data from federal prosecutors.
The Justice Department will turn to Olson -- who represented Koon and is now the U.S. solicitor general -- to appeal in favor of a harsher sentence if the attorney general believes the judge was too lenient.