Amendment Would Require Federal Judges to Report Sentences to Congress

[Timber Loftis]

This is just silly. First, it's a rider to a bill and cleverly hidden. Second, it has impacts way beyond the bill. Third, it takes sentencing away from judges.

Judges I know on the bench consider it an important function of theirs to promote fair sentencing. As an example, realizing that our drug conviction sentencing guidelines are absolutely stupidly draconian, many judges decrease those sentences. In their opinion, it is truly an important function to have someone with a bit of common sense sitting between the head-in-ass legislature and the people.

Oh well, read on if you like and make up your own mind.

Oh - final thought: this thing is basically a paperwork and reporting bill, wasting more time doing what we all hate, and brought to you by the DORD (Department of Redundancy Department).
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TIGHTENING THE REINS
Amendment Would Require Federal Judges to Report Sentences to Congress

BY STEPHANIE FRANCIS CAHILL

A popular bill to prevent child abduction is working its way through Congress, and an amendment adding reporting requirements to the U.S. Sentencing Guidelines is riding along with it. Critics, including the ABA, say the amendment was tacked onto an unrelated bill to muzzle federal judges.

The Child Abduction Prevention Act was proposed in the wake of state successes such as California’s Amber Alert system, which has helped recover more than a dozen children since it was established statewide last July. The act, which passed the House by a wide margin on March 27, would create stiff penalties for child exploitation and would fund state kidnapping-alert systems. But it also contains an amendment that calls for significant changes to the U.S. Sentencing Guidelines, including a mandate that downward departures be reported to the House and Senate judiciary committees.

If passed, the amendment would apply to all federal sentencing matters, not just those involving child abduction or exploitation.

"Departures are supposed to be rare. But instead, a disturbing trend has occurred, especially in child pornography cases," wrote Tom Feeney, R-Fla., the amendment’s author, and F. James Sensenbrenner Jr., R-Wis., chairman of the House Judiciary Committee, in a letter March 26 urging colleagues to support the bill. "This is contrary to the purpose of the guidelines, that departures should be ‘highly infrequent,’ not a common occurrence."

On Tuesday, ABA President Alfred P. Carlton Jr. sent a letter to Sen. Orrin G. Hatch, R-Utah, chairman of the Senate Judiciary Committee, opposing the amendment. The letter notes that the amendment was included in a popular yet unrelated bill, and it was adopted without any House or Senate committee hearings.

"By effectively eliminating judicial departures, the Feeney amendment strikes a blow at judicial independence and sends an unmistakable message that Congress does not trust the judgment of the judges it has confirmed to office," Carlton wrote.

The amendment would require district courts to file case-specific sentencing reports with the U.S. Sentencing Commission, which would make the reports available to both judiciary committees. The sentencing commission also would have to submit an annual report to Congress, including a list of districts that did not comply with the enhanced reporting requirements.

The amendment also requires the U.S. attorney general to report downward departures to the judiciary committees, excepting departures issued to government informers. All fact-based departure decisions, other than departures for government witnesses, would require de novo review.

The amendment prohibits sentence departures based on youth, aberrant behavior and family responsibilities, as well as for cases that fall outside the heartland of the guidelines.

Figuring into the debate is James Rosenbaum, chief judge of the Minnesota District Court. Last year, Rosenbaum testified before a House subcommittee that sentencing guidelines are sometimes unfair in drug cases. Subcommittee members reported Rosenbaum’s remarks to the Judiciary Committee, and in March, Sensenbrenner said he intended to subpoena Rosenbaum’s sentencing records, on the basis that Rosenbaum may have let drug offenders off too easily. The Wisconsin Republican has not subpoenaed the records yet, and Rosenbaum’s lawyer, Victoria Toensing of Washington, D.C., says she is trying to work things out privately with the committee.

Lawyers on both sides of the political aisle share the ABA’s concerns about the Feeney amendment.

"I’m pro-prosecution, but this is out of control," says John S. Baker Jr., a professor at Louisiana State University’s Paul M. Hebert Law Center. "Legislatures would like to be able to impose the sentences themselves."

Federal judges also have opposed the amendment.

"Review by the House and Senate judiciary committees appears to present separation-of-power issues with regard to all three branches of federal government," says Judge Larry Piersol, chief judge for the District of South Dakota. "I believe that federal judges are conscientiously performing the duties entrusted to them by the Constitution of the United States."

However, some say opponents of the amendment may be overreacting. They argue that information gathered from sentence reports could be a useful research tool. Charles L. Hobson, a Sacramento, Calif., lawyer with the conservative, anti-crime Criminal Justice Legal Foundation, doesn’t think the amendment will intimidate judges if it becomes law.

"Federal judges have lifetime tenures," Hobson says. "The Constitution has made them very hard to intimidate. This is just about bringing information to the public. Hopefully, Congress won’t keep it to itself, and this could also be viewed by scholars."

Jeffrey Standen, a professor at Oregon’s Willamette University College of Law, agrees that opponents to the amendment may be overreacting.

Standen mentions Koon v. United States, 518 U.S. 81, a 1996 U.S. Supreme Court opinion involving a police officer accused in the beating of Rodney King. The decision gave district courts discretionary authority to issue downward departures for unusual factors that are outside the "heartland" of the sentencing guidelines. The opinion is based on the wording of the Sentencing Reform Act and the guidelines, which state that they are formulated to apply only to the heartland of cases and do not adequately consider atypical cases.

Koon requires a court reviewing a downward departure to ask whether the lower court abused its discretion rather than review the decision de novo.

Some, including the ABA, say the Feeney amendment is Congress’ response to a perception that Koon allows judges to abuse their discretion.

"As a matter of legal authority, it’s OK to attack Koon, because it’s a statutory-based decision; it’s not a constitutional decision," Standen says. He adds that it may be useful to understand what motivates downward departures.

"It might be healthy in the long run to go after Koon a little bit, and have things spelled out for us," he says.

[Azred]

I think Congress is trying to give itself some advance warning of currently-seated Federal judges who may one day be appointed for higher seats, especially those on the Supreme Court. Basically, I agree with Judge Piersol.

Hobson says this is about bringing information to the public. Aren't court decisions public already (in most cases), or at least researchable through the Freedom of Information Act?

This is much more than "information for information's sake"; this is about keeping score. Information can be a very powerful tool, especially in the hands of a Congressional committee.

Besides...to attach this to a bill that could help establish national Amber Alert Programs is petty. Put the children first, ladies and gentlemen. [img]graemlins/nono.gif[/img]