Federal judges rebel over limits to sentencing power

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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