- The Washington Times - Saturday, November 22, 2003

Sometimes small policy changes have large long-term effects. A policy put into place to solve one problem may well end up affecting other problems down the road.

A good example is the new charging policy for prosecutors. Attorney General John Ashcroft recently ordered federal prosecutors to do less plea-bargaining — much less. Except in unusual circumstances, they now may accept a plea from a defendant only to the “top” charge — the most serious charge possible under the facts of a case.

For example, prosecutors no longer can allow a murder charge to be pleaded out as manslaughter. That may be a positive development, since it means more defendants will be sentenced based upon the true gravity of their offense.

In the short term, the effects of the new charging policy will be dramatic. There will be fewer plea bargains and more trials. And if prosecutors truly stick with the “top charge” policy, there will be longer prison terms under the federal sentencing guidelines.

But it’s the long-term effects of the new policy that may be even more important. Congress has the ultimate responsibility for defining what is a crime and setting the sentence for each offense. The new Ashcroft charging policy will go a long way toward preventing Congress from doing what it does best — avoid accountability for its decisions.

Consider: There are currently more than 3,000 federal crimes on the books, and more than 40 percent of them have been added since 1970.

The natural reaction of Congress to any domestic problem is to pass more laws, make more crimes and increase criminal sentences. That is understandable. Raising penalties and creating new crimes is the politically popular act. Really, there is no “anti-criminalization” lobby.

But, as Professor William Stuntz of Harvard has explained, there’s another reason Congress pays little attention when it decides to make a new crime or raise the penalties — lawmakers can do it and then hide behind a prosecutor’s decision to plea bargain. If the prosecutor bargains in a way the public supports, the legislators can bask in the reflected glory and say “we gave him the tools he needed.” If the prosecutor makes bad bargains (whether too draconian or too lenient) the legislator can blame the prosecutor for misusing discretion.

But hiding from responsibility in that way is fundamentally wrong. Our elected legislators, not the unelected prosecutors, ultimately should control the criminal law. For example, whether we think drug sentences are too harsh or too light, they are what they are because Congress — not the prosecutor — has defined what is a crime and how severely an offender must be treated.

The problem is that plea-bargaining breaks the feedback loop. When Congress hides behind the prosecutor’s decisions, it confuses the public as to who bears the ultimate authority for criminal law. That allows craven politicians to pander to public fear by passing criminal laws without any responsibility for the consequences of their decisions.

And therein lies the promise of the new Ashcroft guidelines — though, no doubt, a promise the attorney general did not intend. By severely limiting plea-bargaining, the new guidelines will lift the veil that protects legislators. Criminal sentences will rise. And when the public now asks, “How can these sentences be so long?” the answer will be “because that’s what Congress required,” and not “because the prosecutor plea bargained the case.”

As a consequence of this new dynamic, Congress may change how it defines crimes and set sentences, or it may not. But one thing is for sure — increased public awareness of the legislature’s responsibility for criminal law can only help to make the criminal law more reflective of what the public really wants. And that’s a good thing.

Paul Rosenzweig is senior legal research fellow at the Heritage Foundation.


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