- The Washington Times - Sunday, January 18, 2004

In his annual report on the state of the federal judiciary, Chief Justice William Rehnquist on Dec. 31 charged Congress — and by implication, the attorney general — with responsibility for a law that can result in “an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties.”

Attorney General John Ashcroft — not content with weakening the constitutional separation of powers through the minimal judicial supervision provision in his USA Patriot Act and executive orders that undermine civil liberties — has attacked the independence of federal judges in their regular sentencing responsibilities.

Last spring, President Bush signed into law a bill that included the Feeney Amendment, named for Rep. Tom Feeney, Florida Republican. Mr. Feeney, at the Justice Department’s request, had introduced legislation making it significantly more difficult for federal judges to use their discretion to give sentences lower than those set by the 20-year-old U.S. Sentencing Commission.

But an independent judiciary, free from such legislative restrictions, is the basic guardian of the Bill of Rights and the rest of the Constitution. It protects against an overreaching executive branch and a Congress so deferential to waves of popular opinion that lawmakers may forget that the rule of law becomes distorted unless there is due process — fairness — in our courts.

The Feeney Amendment orders the Sentencing Commission to keep records of each federal judge whose sentences are downward departures from the commission’s guidelines. These reports on judges who are “soft” on sentencing must be given to Mr. Ashcroft, who is then required to inform the judiciary committees of the House and Senate about the “wayward” judges.

In addition, Mr. Ashcroft, taking command, sent an internal memorandum last July 28 to federal prosecutors around the country to report directly to the Justice Department — that is, “the General” — any reductions of sentences under the guidelines.

Reflecting the rising resentment of federal judges around the country is Manhattan Federal District Judge John S. Martin Jr. Nominated by the first President Bush, Mr. Martin, who had been on the federal bench for 13 years, has resigned his lifetime appointment. Explaining why in the New York Times editorial page, he wrote that, “For a judge to be deprived of the ability to consider all the factors that go into formulating a just sentence is completely at odds with the sentencing philosophy that has been a hallmark of the American system of justice.”

In a concurring editorial, editors at the Chicago Tribune wrote that the Feeney Amendment “is handcuffing justice.”

Years ago, after the U.S. Sentencing Commission guidelines had already begun to be responsible in large part for crowding our federal prisons, I interviewed New York Appellate Judge Burton Roberts, who had previously been one of the toughest law-and-order district attorneys I have covered in reporting on the criminal justice system.

Judge Roberts was outraged at the diminishing of judicial independence. “The description of the crime may be the same,” he told me, “but each defendant is different. Judges are supposed to recognize these differences in imposing sentences.”

Last August, at an American Bar Association meeting, Supreme Court Justice Anthony Kennedy, who often votes with the so-called “conservative” bloc on the court, told ABA members that, as a whole, the sentencing guidelines “should be revised downward,” and indeed he wants them repealed. “I can accept neither the necessity nor the wisdom,” Justice Kennedy emphasized, “of federal mandatory minimum sentences.”

A month later, the Judicial Conference of the United States — judges who set policy for the federal courts — unanimously asked Congress to repeal the Feeney Amendment.

As for the blacklist this law creates of judges under suspicion, Southern District Judge Robert P. Patterson charges: “Evidently, Congress sought to deter any (sentencing) departures by the implicit threat to trial judges that, if they are considered for appellate positions, they will be subjected to the type of demeaning and unseemly treatments which nominees to the courts of appeals have undergone at the hands of Congress in recent years.” These demeaning assaults have come from Republican and Democratic senators alike.

Rep. John Conyers, Michigan Democrat, and Sen. Ted Kennedy, Massachusetts Democrat, have introduced legislation to restore the independence of the judiciary in sentencing. But it will take pressure by the press, and then the public, to awaken Congress to what it has done. As Mr. Patterson warns, the Feeney Amendment changes our system of justice so “it will be regarded as subservient to our other branches of government — the system that prevailed for so many years behind the Iron Curtain.”

Chief Justice Rehnquist is not given to hyperbole. His warning to the citizenry that individual judges must not be intimidated by Congress and the attorney general is justifiably urgent. More citizens should join him in warning Congress.

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