Today's Associated Press
story about John Ashcroft's program to keep tabs on lenient judges has a significant error in it. The story reports that "[t]he effect of the [program] will be to shift most decisions on whether to appeal a sentence that is less than called for in the sentencing guidelines from federal prosecutors to Justice Department lawyers in Washington."
This is false. It has always been the case that "Justice Department lawyers in Washington" have made the decision about whether to file any sort of appeal in a federal criminal case, including an appeal of a sentence. Here's how the process worked when I was at the US Attorney's Office in Newark, NJ, from 1990-1994: after an adverse decision in a federal district court, I had to prepare a lengthy memo making the case for an appeal and submit it to the Chief of the Appeals Division in my office. She, in turn, had to get the approval of the U.S. Attorney himself. Then the memo was sent to the Appeals Section of the Justice Department's Criminal Division in Washington, DC. An appellate attorney would prepare his own memo, using my memo as a basis, but commenting extensively on the advisability of an appeal in the broader context of the Justice Department's overall enforcement strategies. Both of those memos would then go to a lawyer in the Solicitor General's Office, who would prepare another memo on the same question and make a recommendation (appeal or no appeal) to the Solicitor General. The Solicitor General would then receive the entire stack of memos and would decide whether or not to appeal.
And that was the process for every single case in which I, as a line Assistant, thought an appeal was advisable.
I don't know the statistics, but in my personal experience we were forbidden from appealing more often than we were allowed to do so.
This program of Ashcroft's is creepy, to be sure. But it does not transfer power to Washington. That's where the power has always resided.
UPDATE: A
Volokh Conspiracy reader noted, in an email, that this new program might transfer power to DC after all. The process I describe above is for cases where the prosecutor loses in the district court and wishes to appeal. Ordinarily, if the prosecutor in the district court loses and he (and his office) are content to leave things alone, they are under no obligation to notify main Justice of the potentially appealable loss. This plan, it seems, does oblige them to notify main Justice when they've opposed a downward departure and the judge has granted it anyway. So in that sense, the program will (much more rapidly) bring to main Justice's attention adverse decisions that are potentially appealable, and I suppose that if the appellate section and the Solicitor General's Office at main Justice wish to take the appeal themselves (even over the resistance of the local U.S. Attorney's Office), they'll be able to do so.
I doubt this will happen often. As I said earlier, my experience was that DOJ's appeals section and the SG's office were considerably more reluctant to take appeals than we were at the NJ US Attorney's Office. Not only that, but the appellate section in DC is hardly staffed to run lots of their own appeals of sentencing decisions all over the country. Still, the scenario the reader describes is indeed possible.
Of course, even under this scenario, the locus of ultimate decisionmaking power does not change: no appeal was permissible without multiple layers of approval at main Justice before the plan, and that is true after the plan as well.
