Three branches, not two: Congress should reconsider recent assaults

On April 30, President Bush signed the so-called Amber Alert bill, a popular piece of legislation intended to create a national communications system to help recover abducted children. The law includes provisions that will curtail the ability of federal judges to depart downward from the sentencing guidelines in cases where they conclude that circumstances justify such a departure. Those provisions were added in a "stealth amendment," which was introduced by Tom Feeney, a freshman congressman from Florida, but sponsored by the Justice Department, that the House of Representatives adopted without hearings and with only very limited debate.

Even more troubling, however, is the fact that it was adopted without seeking the input of either the federal judiciary or the United States Sentencing Commission. In fact, upon learning of its existence, both opposed it. Notwithstanding their expressed concerns, the amendment emerged from conference revised but still problematic, and the conference bill was passed overwhelmingly by both houses of Congress shortly after the recovery of Utah teenager Elizabeth Smart. Even members who opposed the amendment voted for the bill.

The adoption of the Feeney Amendment followed a threat by a House committee to subpoena documents concerning the sentencing practices of Chief Judge James Rosenbaum of Minnesota. In May 2002, Judge Rosenbaum, a former prosecutor who was appointed by President Reagan, testified in opposition to a bill that would have reinstated tougher sentences for first-time drug offenders. That testimony evidently upset committee Republicans, and a year later, notwithstanding numerous efforts to defuse the situation, Judge Rosenbaum remains under the cloud of a House investigation.

The Sentencing Commission was created by the Sentencing Reform Act of 1984, which established a system of guidelines intended to enhance fairness in sentencing by avoiding unwarranted disparities among similarly situated defendants. The act also instructed the Sentencing Commission to include provisions that would permit judges to impose individualized sentences when called for by mitigating or aggravating factors not otherwise taken into account, through downward or upward departures from a guideline sentence.

The Feeney Amendment has upset the balance struck by Congress in 1984 between sentencing uniformity and individualized justice. As ultimately passed, the legislation will, among other things, limit the number of federal judges who can serve on the Sentencing Commission; eliminate the ability of judges to depart downward when sentencing in child abduction and sexual assault cases unless the mitigating circumstance is expressly set out in the guidelines; prevent judges, when sentencing for any crime, from departing downward because of assistance by the defendant in either the investigation or his own prosecution unless the government files a motion requesting such a departure; overrule a 1996 Supreme Court decision holding that the federal appellate courts must give "due deference" to trial court departure decisions; prohibit the Sentencing Commission from adopting any new grounds for downward departure until May 2005; require the chief judge of each district to submit to the Sentencing Commission a detailed report on each sentence imposed by judges in the district within 30 days of entry of judgment; and require the Sentencing Commission, upon request, to make available to the House and Senate Judiciary Committees and the Attorney General the sentencing reports (including the identity of the sentencing judge) and any other records received from courts.

We do not question Congress' power to pass this legislation, although its reporting provisions are extremely troublesome from the perspective of separation of powers. We do, however, question its wisdom in doing so. The danger of sentencing guidelines is that they will lack the flexibility to permit judges to take into account considerations peculiar to an individual case that justify a departure-i.e., that they will prevent judges from treating differently defendants who are not truly similarly situated. The Feeney Amendment appears to be intended to do precisely that. In a very real sense, each case is unique, as are the circumstances of each defendant. Trial judges are in the best position to determine whether considerations unique to a particular defendant justify a sentence different from that called for by the guidelines. To restrict the ability of trial judges to perform this traditional role, as does the Feeney Amendment, has the effect of transforming "guidelines" into mandatory minimum sentences. This, in turn, produces a result opposite to that professed to be the goal of sentencing guidelines-instead of enhancing fairness by treating similarly situated defendants alike, it diminishes fairness by precluding the consideration of legitimate differences between defendants.

If the Feeney Amendment was ill-conceived, the investigation of Judge Rosenbaum is an outrage. The practice of the House since the failed attempt to remove Justice Samuel Chase in 1805 has been that a federal judge's decisions are not an appropriate ground of impeachment. The recent saber-rattling by House members and staff thus reveals either their ignorance of or contempt for constitutional custom. In any event, it is difficult to regard the effort as other than an attempt to intimidate both Judge Rosenbaum and his colleagues on the federal bench. That is a tactic openly professed by at least one member of the Republican leadership in the past.

We urge Congress to seek the knowledge and experience of those most familiar with the sentencing process-the federal judiciary and the Sentencing Commission; to reconsider the Feeney Amendment; and, if appropriate on the basis of accurate and full information, to rescind what seem to us unwarranted and inappropriate impediments to wise sentencing in federal courts. We also urge the leadership in the House to consult the Constitution, the customs of the House, and their consciences before the Rosenbaum affair becomes, as it well might, a constitutional crisis