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June 24, 2003
 Let Judges Do Their
Jobs
By HON. JOHN S. MARTIN Jr.
I have served as a federal judge for 13 years. Having reached
retirement age, I now have the option of continuing to be a judge
for the rest of my life, with a reduced workload, or returning
to private practice. Although I find my work to be interesting
and challenging, I have decided to join the growing number of
federal judges who retire to join the private sector.
When I became a federal judge, I accepted the fact that I
would be paid much less than I could earn in private practice;
judges make less than second-year associates at many law firms,
and substantially less than a senior Major League umpire. I believed
I would be compensated by the satisfaction of serving the public
good and the administration of justice.
In recent years, however, this sense has been replaced by the
distress I feel at being part of a sentencing system that is
unnecessarily cruel and rigid.
For most of our history, our system of justice operated on
the premise that justice in sentencing is best achieved by having
a sentence imposed by a judge who, fully informed about the offense
and the offender, has discretion to impose a sentence within
the statutory limits. Although most judges and legal scholars
recognize the need for discretion in sentencing, Congress has
continually tried to limit it, initially through the adoption
of mandatory-minimum sentencing laws.
Congress's distrust of judicial discretion led to the adoption
in 1984 of the Sentencing Reform Act, which created the United
States Sentencing Commission. The commission was created on the
premise, not unreasonable, that uniformity in sentencing nationwide
could be promoted if judges and other criminal law experts provided
guidelines for federal judges to follow in imposing sentences.
However, Congress has tried to micromanage the work of the commission
and has undermined its efforts to provide judges with some discretion
in sentencing or to ameliorate excessively harsh terms.
For example, when an extensive study demonstrated that there
was no justification for treating crack cocaine as 100 times
more dangerous than powdered cocaine, the ratio adopted by Congress
in fixing mandatory minimum sentences, the commission proposed
reducing the guideline ratios. However, the proposal was withdrawn
when Congressional leaders made it clear that Congress would
overrule it.
Congress's most recent assault on judicial independence is
found in amendments that were tacked onto the Amber Alert bill,
which President Bush signed into law on April 30. These amendments
are an effort to intimidate judges to follow sentencing guidelines.
From the outset, the sentencing commission recognized the
need to avoid too rigid an application of the guideline system
and provided that judges would have the power to adjust sentences
when circumstances in an individual case warranted. The recent
amendments require the commission to amend the guidelines to
reduce such adjustments and require that every one be reported
to Congress. They also require that departures by district judges
be reviewed by the appellate courts with little deference to
the sentencing judge.
Congress's disdain for the judiciary is further manifested
in a provision that changes the requirement that "at least
three" of the seven members of the sentencing commission
be federal judges to a restriction that "no more than"
three judges may serve on it. Apparently Congress believes America's
sentencing system will be jeopardized if more than three members
of the commission have actual experience in imposing sentences.
Every sentence imposed affects a human life and, in most cases,
the lives of several innocent family members who suffer as a
result of a defendant's incarceration. For a judge to be deprived
of the ability to consider all of 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.
When I took my oath of office 13 years ago I never thought
that I would leave the federal bench. While I might have stayed
on despite the inadequate pay, I no longer want to be part of
our unjust criminal justice system.
John S. Martin Jr. is a federal district judge in Manhattan.
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