The Umpires Strike Back

It takes a lot to rile up the federal judiciary. By virtue of their training and temperament, judges don't often whine, complain, or show anger in public. And they almost never air their grievances in the court of public opinion. So it is extraordinary to see some life-tenured jurists so upset these days about a new law they say intrudes on their constitutionally protected independence.

Last year, Congress piggybacked on to the Amber Alert bill a provision known as the Feeney Amendment. Named for Florida Republican Representative Tom Feeney, the rider was designed to limit the circumstances in which a federal judge could depart downward in a criminal sentence under the federal sentencing guidelines. Among other things, the Feeney Amendment directed the U.S. Sentencing Commission, the congressionally created independent agency that oversees the federal criminal-sentencing scheme, to change the rules to preclude judges from considering certain mitigating factors -- like a defendant's cooperation, even -- that would support downward departures. The amendment limited the number of judges who could serve at any one time on the commission itself and created controversial new interbranch reporting requirements that some judges feel harken back to the days of blacklisting.

The Feeney provisions represent Congress' latest effort to limit the already diminished discretion federal trial judges have in sentencing for criminal cases. Now the judiciary is pushing back. "Feeney makes judges go from being 'the pinnacle' of the plea-bargaining process to being merely 'a nuisance,'" complains U.S. District Judge William Young, the chief federal trial judge in Massachusetts. He sees the amendment as further proof that Congress wants to vitiate the judiciary's role in sentencing while maintaining the aura of judicial independence and power. "Congress doesn't want to get rid of [the] symbolism [of judge-inspired sentences] because that conveys to our people that there has been judgment, that there has been reflection," Young adds.

But it is precisely because Feeney takes away a judge's right to reflect upon an individual's life history prior to sentencing that some judges perceive it as an improper and unconstitutional violation of the separation-of-powers principle. Because Feeney narrows the time range judges may consider in sentencing, the provisions give prosecutors a concomitant power to affect those sentences simply by virtue of the charges they bring against a defendant. In other words, prosecutors can all but ensure that they get the sentence they seek by doing their sentencing guidelines "math" in advance of trial, even in advance of the indictment. And this new calculus isn't sitting well with the judiciary.

As first reported in the New York Law Journal, a panel of federal judges on the 2nd U.S. Circuit Court of Appeals last fall vented about this changing calculus during an oral argument in a drug case that began long before Feeney. "You're telling me that the system we have set up, that has been set up by Congress, which removes discretion from the judges, has given discretion to your office," Judge Guido Calabresi told U.S. Attorney Robert Appleton during a remarkable public exchange. "This case is a perfect example of you telling me that your office made some decisions with respect to what is right and just and true, and the district court is thereby prohibited from having any say in the matter."

Another jurist, U.S. District Judge John Keenan, sitting in Manhattan, has repeatedly criticized the changes. "The Feeney Amendment has created unnecessary pressure on judges and unduly restricts them," Keenan says. "The shift in sentencing authority [from judges] to prosecutors is what I primarily object to." Things have reached the point that U.S. District Judges Paul Friedman and Thomas Penfield Jackson, who both sit as trial judges in Washington, no longer tell jurors in criminal cases that they, the judges, determine sentences -- they explicitly tell jurors that they aren't really responsible for the sentences imposed upon convicted defendants.

Not everyone perceives Feeney as an impermissible or unwise encroachment on the federal judiciary. Justice Department spokeswoman Monica Goodling says the amendments will halt a "consistent and unchecked increase in the number of cases" in which federal judges departed downward from sentencing guidelines. And House Judiciary Committee Chairman James Sensenbrenner Jr. says the Feeney Amendment "re-establishes Congress' original intent for fair and equal sentencing justice throughout the federal judiciary."

Another thing many on the bench dislike about Feeney is the way it came about. The Judicial Conference of the United States, which shapes policies and procedures for the federal judiciary, wasn't consulted about the amendment before it was passed. This omission drew rare public comment from Supreme Court Chief Justice William Rehnquist. "It seems that the traditional interchange between the Congress and the judiciary broke down," the nation's top judge wrote in December 2003. The conference itself, made up of the nation's leading judges, including Rehnquist, issued a unanimous resolution in April 2003 calling for the amendment's repeal because of this lack of notice. And the members of the U.S. Sentencing Commission, who along with federal prosecutors are part of the executive branch, practically begged Congress last year to consult with them before enacting Feeney. Congress said thanks but no thanks and promptly passed Feeney, which President Bush signed into law.

Then there are Feeney's reporting requirements, which have generated a lot of heat from the bench and most of the light from the media. The legislation directs the chief judge of every federal district to send the sentencing documents on each criminal case to the U.S. Sentencing Commission. The commission then must, upon request, pass along this data to the Justice Department and to the judiciary committees in both chambers of Congress. The legislators cannot impeach a sitting federal judge except in extraordinary cases, but the oversight power alone -- and the implicit political and legal threat it generates -- has judges steamed.

The Justice Department claims these reporting requirements don't add measurably to those that already exist, but across the country judges seem to disagree. In mid-January, a federal judge in California became the first jurist to declare these requirements unconstitutional. "Congress may not intrude on the Judiciary any more than the Judiciary may intrude on Congress," wrote U.S. District Judge Dickran Tevrizian in a case involving an accused bank robber who negotiated a plea deal with prosecutors. Another federal jurist, U.S. District Judge Sterling Johnson Jr., who sits in Brooklyn, simply has sealed any sentencing support documents, like probation reports, that otherwise might have been turned over to the U.S. Sentencing Commission under Feeney. "There is a lot of sensitive information gathered in those [pre-sentencing] reports," Johnson says. "What good reason does the legislative branch have with confidential judicial records?"

Other judges are raising questions and taking action, too. Last June, U.S. District Judge John Martin Jr., a federal judge in Manhattan, gave up his lifetime appointment partially as a protest of the sentencing process. U.S. District Judge Thomas Platt, who sits as a trial judge in Brooklyn, reportedly was removed from a drug case last year by a federal appellate panel because he had been so outspoken about his opposition to the sentencing guidelines. And even Rehnquist, who is always careful with his words, warned that the Feeney Amendment "could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties." Judge Young goes one step further than his boss. "I am not intimidated," he says. "But I am obedient."

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