LAW-PROFESSOR BLOGGER ERIC MULLER points out a serious factual error in a New York Times editorial on Ashcroft and federal sentencing:

I said it before, but now that it’s in the Times I’ll say it again: this is a factually false depiction of the federal appellate system. And it’s not just a little detail; it goes to the heart of the criticism the Times is making of Ashcroft’s plan.

Right now, individual prosecutors do not decide when to appeal a judge’s sentence. The Solicitor General of the United States does, after multiple rounds of independent evaluations and recommendations by attorneys in the Appellate Section of the Justice Department’s Criminal Division and by at least one attorney in the Solicitor General’s Office (in addition to the Solicitor General himself). No local prosecutor has the power to file an appeal without review and explicit approval from Washington. The most that this plan does is to get information about sentencing leniency to Washington more quickly, so that (in theory at least) lawyers in the Appellate Section of the Criminal Division could order a local office to appeal a sentence that the local office was not inclined to appeal, or perhaps (though this would tax the Appellate Section’s manpower beyond the breaking point) so that the Appellate Section lawyers could take the appeal themselves.

So yes, Mr. Ashcroft does “seem to want [the sentencing appeal] decision to be made after a review from Washington.” But that’s the way the decision has always been made.

It is surprising to see this sort of factually erroneous assertion on the Editorial Page of the New York Times. They should correct it, and temper their criticism accordingly.

I wonder if a correction will be forthcoming?

UPDATE: And here’s another claim of a monumental, uncorrected Times error.