Federal judges rebel over limits to sentencing power

Congress's move to tighten guidelines to better control 'maverick' judges draws broad criticism from bench.

John Martin will quit his job for life as a federal judge next month, vacating 16th-floor chambers that are bigger than most Manhattan apartments.

Mr. Martin isn't leaving because of the salaries, though, despite 13 years on the bench, he still makes less than most young corporate lawyers. Nor is he departing because of the bitter Senate confirmation battles that leave judgeships unfilled and caseloads rising.

Instead, Martin will be retiring his judicial robes because of changes to federal sentencing rules that he considers so "unjust" that he no longer wants to work inside the criminal justice system.

Martin's reaction, though extreme, is part of a rare rebellion in the federal judiciary over new congressional strictures that limit the range of prison sentences judges can dispense. From Washington to California, normally reticent judges at virtually all federal levels are chafing at the guidelines that, among other things, eliminate flexibility in setting jail terms for whole categories of crimes.

The protests aren't coming from just a few disgruntled liberal judges, either. William Rehnquist, the chief justice of the US Supreme Court, has said he believes the changes go too far. Martin himself is a former federal prosecutor who was appointed to the federal District Court in Manhattan by George H.W. Bush.

The result: an enduring philosophical clash between two powerful branches of government - Congress and the federal judiciary - over who should have the ultimate authority in determining criminal punishments. "It's a very, very painful period for judges," says Daniel Freed, a Yale University law professor.

The source of the judicial ire is changes to the federal sentencing guidelines, made at the request of Congress, that went into effect last month. Under the new rules, judges who depart from the guidelines can face the possibility of their individual sentencing records being made public. They also face more scrutiny from appellate courts about sentences they give out.

Supporters of the new guidelines - including the US Justice Department and many Republicans on Capitol Hill - say the new measures were needed to rein in maverick judges and ensure uniformity of sentencing. But judges say the changes, included in a little-debated amendment attached to a bill about kidnapped children, has thrown the balance between discretion and consistent punishment out of whack.

"Every judge who daily has to deal with the most difficult issues of sentencing has the right to ask, Why does Congress hold the courts in such a low regard that they were uninterested in obtaining the views of those whose duty it is to fashion fair and just sentences in every case?" says William Young, the chief judge of the US District Court for Massachusetts.

Ever since its creation by Congress in 1984, the Sentencing Commission, which instituted the new changes at the behest of Congress, has proven a source of tension between the legislative and judicial branches. Many federal judges initially refused to follow its guidelines that delineate punishments based on the seriousness of crimes and defendants' criminal histories. In the years since, Congress further curtailed judges' discretion by adopting mandatory minimum sentences. Judges could still opt to depart from the guidelines for other crimes.

Congressional critics charged that judges abused that discretion by departing from the guidelines too frequently. The tension peaked last spring when a congressional committee threatened to subpoena a Minnesota federal judge, James Rosenbaum, to explain why he departed from the rules.

Rep. Tom Feeney (R) of Florida then introduced the legislation that requires judges to explain any sentence lesser than the rules recommend. "It's about accountability," says Mr. Feeney. "It tells judges that they ought to explain to the world why they thought a decision was appropriate."

The version ultimately signed into law by President Bush did not include much broader mandatory minimums initially introduced by Feeney. Still, the changes left even many law-and-order-minded judges upset. For the first time, Congress spelled out penalties for specific crimes - sexual abuse and kidnapping of children - rather than letting the Sentencing Commission establish the guidelines. Another provision reduced the number of judges who can serve on the seven-member commission.

Even so, many judges were reluctant to criticize the move for fear Congress might retaliate by withholding pay raises, says Prof. Freed. Yet Martin took the unusual step of resigning after writing an opinion piece that slammed Congress for adopting the measure without any public debate or study examining departure rates.

Martin says he was "totally disgusted" that sentencing power was taken out of the hands of those who know cases best: judges. "Every sentence involves human life, and it's just absurd what we're doing with people."

Judges depart from the Sentencing Commission guidelines in about 18 percent of cases, according to commission statistics, and many of those sentences are requested by prosecutors to reward cooperative defendants. Some of the highest departure rates occur in districts such as northern New York and Arizona, where reduced sentences are used to induce pleas and prevent immigration and drug cases from clogging the courts, Martin says.

For his part, Martin plans to return to a more lucrative job in the private sector. He also wants to start a group of former federal prosecutors and retired judges to push for changes in the sentencing laws.

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