- The Washington Times - Friday, January 2, 2004

Congress should have sought the judiciary’s advice before limiting the ability of judges to impose lighter sentences than specified in federal guidelines, the nation’s top judge says.

“During the last year, it seems that the traditional interchange between the Congress and the Judiciary broke down when Congress enacted what is known as the Protect Act, making some rather dramatic changes to the laws governing the federal sentencing process,” Chief Justice William H. Rehnquist wrote yesterday in his annual report on the state of the judiciary.

The changes to which Chief Justice Rehnquist objected were tucked into an anticrime bill passed by Congress and signed into law by President Bush in April. It targeted child kidnappers, molesters and pornographers and included a national Amber Alert network.

But it also included a provision sponsored by Rep. Tom Feeney, Florida Republican, and supported by Attorney General John Ashcroft, that reduced federal judges’ discretion in sentencing criminals, and required reports to Congress on any judge who departs from sentencing guidelines.

Collecting this information on judges, Chief Justice Rehnquist said, is “troubling.” He said cataloging such data “could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties.”

Other critics say it could lead to a “black list” of judges deemed soft on crime.

In the report, the chief justice lectured Congress on the importance of a strong working relationship between the judicial and legislative branches, and he cited historical examples in which the two arms of government consulted on drafting laws.

He complained that the measure changing judges’ sentencing authority was enacted “without any consideration of the views of the judiciary.” He added, “It surely improves the legislative process at least to ask the judiciary its views on such a significant piece of legislation.”

Mary Cheh, a law professor at George Washington University Law School, said Chief Justice Rehnquist has a legitimate complaint.

Congress adopted “rules and procedures that really are quite unacceptable as far as the judges go because it so restricts their discretion and so straitjackets the process that it really has caused a lot of consternation,” she said. The new law means “the sentencing process is even more removed from the judge … and placed more heavily in the hands of prosecutors.”

Prior to the new law, prosecutors had long complained that judges had too much leeway in imposing sentences.

Supporters of the measure argue that it was needed to ensure fair and equal sentencing throughout the judiciary. House Judiciary Committee Chairman F. James Sensenbrenner Jr., Wisconsin Republican, said too often judges were handing down sentences lighter than those specified in federal guidelines.

“The Feeney amendment seeks to correct these sentencing disparities so that one person doesn’t receive a sentence three times as long as another person committing the same crime,” Mr. Sensenbrenner said in a statement responding to Chief Justice Rehnquist’s report.

The Judicial Conference of the United States — a 27-judge body that sets policy for federal trial judges, appeals judges and others — voted in September to support overturning the law.

Sens. Edward M. Kennedy of Massachusetts, Patrick J. Leahy of Vermont and other Democrats have introduced legislation that would nullify the Feeney amendment.

Calls to Mr. Feeney’s offices in Washington and Florida were not returned Wednesday.

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