More than 10,000 of nearly 55,000 federal sentences in fiscal 2001 — about 18% — were “downward departures” from the guidelines, according to the U.S. Sentencing Commission, a federal agency created in 1984 to implement the guidelines.
Such lenient sentences have become more frequent since 1995, when 8.4% of federal sentences were less than what were called for under the guidelines, which were designed to make punishments consistent across the nation.
The rising number of lenient sentences in all 12 of the nation’s federal judicial circuits has fueled an ongoing tussle between Congress and the judiciary. At issue, legal analysts say, is a fundamental question: Should Congress or judges have the final say on criminal punishment?
President Bush, a frequent critic of “activist” judges who in his view pursue their own agendas, signed a law in April that was designed to rein in judges who break from the sentencing guidelines. Those judges now must state their reasons in writing, to make it easier for appeals courts to overturn lenient sentences.
Following another provision of the law, Attorney General John Ashcroft last month ordered U.S. attorneys to tell the Justice Department each time a federal judge skirts the sentencing guidelines against the wishes of prosecutors.
Ashcroft also said plea-bargain agreements by U.S. attorneys would receive more scrutiny.
Federal judges are appointed for life and cannot be removed because of unpopular decisions. But some say they are being targeted unfairly by Congress and the Bush administration. The judges say the new provisions are designed to force them to give fewer lenient sentences.
The critics include conservative Republicans such as U.S. Chief Justice William Rehnquist, who has called the moves against judges an intrusion on their independence. In a speech at the American Bar Association’s convention this month, another Republican, Supreme Court Justice Anthony Kennedy, blasted attacks on judges’ “sentencing discretion.”
The controversy seems certain to heat up this fall. In mid-September, the congressional General Accounting Office is scheduled to complete a survey that for the first time will pinpoint the courts in which lenient sentences are most common. Congress has given the Sentencing Commission until November to write new rules aimed at greatly reducing the number of downward departures.