December 8, 2003 - New York Times

New York's Federal Judges Protest Sentencing Procedures

By Ian Urbina

To most people, they might seem like minor outbursts. But in the last few months, federal judges in New York, who tend to steer judiciously clear of politics and public debate, have been surprisingly vocal in their criticism of a new sentencing law that they say represents a breach in the separation of powers and bullies them into handing down harsher sentences.

In June, Judge John S. Martin Jr. of United States District Court in Manhattan announced that he was taking early retirement, relinquishing his lifetime appointment, in part, he said, to protest what he called the unjust nature of the sentencing process. Three months later, the chief judge of the United States Court of Appeals for the Second Circuit, in Manhattan, John M. Walker Jr., and 26 colleagues from around the country signed a statement calling for repeal of the law.

Judge Thomas C. Platt of Federal District Court in Brooklyn was so reluctant to follow the sentencing procedures that an appellate panel unanimously removed him from a routine drug case, saying that his decisions were "improperly affected" by his "annoyance" with the sentencing guidelines and with the United States attorney's office.

And in perhaps the boldest criticism of the law, another federal judge in Brooklyn, Sterling Johnson Jr., who was New York City's special narcotics prosecutor from 1975 until 1991, recently issued a wide-ranging order that directly contradicts the law's provision granting Congress more direct access, without the need for judicial permission, to a variety of case documents. Judge Johnson placed a blanket seal on all such documents in cases before him, forbidding Congress to examine these materials without his approval.

The provision, known as the Feeney amendment, was tacked on to the Amber Alert bill signed by President Bush on April 30. It tightens provisions in the federal sentencing guidelines, which were adopted by Congress in 1987 to make sentences in federal criminal cases more uniform.

Among other changes, it limits situations in which a judge can hand down a lesser sentence than called for by the guidelines.

Advocates of the law say that it ensures that federal courts across the country administer punishment uniformly, taking into account the nature and extent of the crime, a defendant's criminal history, admission of guilt and the victim's vulnerability.

"Federal judges have exploited loopholes in the sentencing guidelines," a spokeswoman for the United States Department of Justice in Washington, Cynthia Magnuson, said in a written response to questions. The Feeney amendment, Ms. Magnuson said, is one more effort to guarantee that "when a predator commits a crime, no matter where in the country it occurs, he does the same amount of hard time."

Beyond the tightened discretion, the new reporting structure set up under the Feeney amendment has judges especially angry.

Within 30 days of a sentence in a federal criminal case, the district's chief judge must submit a written report to the United States Sentencing Commission that includes supporting documents like the presentencing report and the cooperation or plea agreement between the government and the defendant. (The commission is the independent judicial agency in Washington, set up during the 1980's, that oversees how the sentencing guidelines are carried out.)

Feeney allows Congress, without permission from the presiding judge, to have access to the report and the supporting documents.

"Without the reporting mechanisms, there is no way for Congress to ensure that judges are actually following the guidelines," the amendment's sponsor, Representative Tom Feeney, a Florida Republican, said in a telephone interview. "That, quite simply, is their intention."

Mr. Feeney says the purpose of the new access is to enable Congress to evaluate the primary sources of reasoning behind a sentence.

But most judges see it otherwise. "It's a serious breach of the separation of powers to have the executive looking over the judiciary's decisions," Judge Robert P. Patterson Jr. of Federal District Court in Manhattan said. "It also certainly looks like a possible blacklist."

After Minnesota's chief federal judge, James Rosenbaum, testified against the new restrictions before the House Judiciary Committee last May, the committee fired back. Citing a pattern of hostility by Judge Rosenbaum, members threatened to subpoena his records in all cases in which he departed from the sentencing guidelines.

The vocal dissent against Feeney is not limited to judges who are generally thought to be more liberal sentencers. "Even I recognize that this administration has taken a step too far," said Judge John F. Keenan of Federal District Court in Manhattan, who is a Reagan appointee, a Republican and a former prosecutor.

For all their concerns about the law, many judges are adamant that they will not be intimidated. "They can have their blacklist," said Chief Judge Michael B. Mukasey of United States District Court in Manhattan. "But we have life tenure."

Judge Johnson acknowledges that his sealing order requiring Congress to get his permission for access to certain case documents represents an unprecedented affront to the Feeney amendment, but asserts that he is entirely within his judicial rights.

"Congress has the authority to make law, and federal judges have the authority to seal documents in cases over which they preside," he said. "All I've done is exert legitimate judicial authority."

Congressman Feeney disagrees. "The fact is that we have full authority to act over federal judges and the right to access those documents," he said. "Judges cannot claim a separation of powers issue here. Under the Constitution, it is Congress that establishes all federal courts other than the Supreme Court in the first place."

Privacy rights are among the judges' main concerns about the recent expansion of Congressional access to case documents like presentencing reports. These reports give a full, intimate picture of the defendant so that a judge can have some context in determining a sentence.

The report, compiled by the probation office, consists, in part, of interviews with everyone who might have knowledge of the defendant, including psychiatrists, extended family members, friends, former spouses, even neighbors. If done well, the report produces an exhaustive description, complete with details about the defendant and related third parties.

"His sister is a heroin addict with AIDS, his mother is a prostitute who is sleeping with one of his brothers, his father was molested as a boy by a family friend," Judge Johnson said. "I guess I feel strongly that such information should not be made accessible to anyone outside the case."

But Mr. Feeney sees the access as critical to judicial accountability. "Without those documents," he said, "it's difficult to know what's going through the judge's head and whether it is bias or evidence that accounted for their particular decision."

Other judges cite broader concerns about judicial autonomy. "I think some judges feel they are under attack from Washington," said Judge Jack B. Weinstein of Federal District Court in Brooklyn. Judge Patterson speculated that younger judges with aspirations for the appellate bench might feel most susceptible to pressure. "They're the ones who need to stay on the right side of Congress if they eventually want their nomination approved," he said.

Judge Martin, who is now in private practice, said the sentencing restrictions had played a major role in his decision to resign, adding that he thought other senior judges shared his frustrations. For many, the job has lost its attraction, he said. "Nothing sits more uncomfortably with judges than the sense that they have all the responsibility for sentencing but little of the power to administer it justly."

These frustrations have occasionally spilled into the courtroom. In one exchange two months ago, the details of which appeared first in The New York Law Journal, a Manhattan federal appellate panel hearing a routine drug case, U.S. v. Jorge Santiago, took the opportunity to strongly criticize the Feeney amendment and the trend it represents.

"You're telling me that the system we have set up, that has been set up by Congress, which removes discretion from the judges, has given discretion to your office," Judge Guido Calabresi said to Robert M. Appleton, an assistant United States attorney prosecuting the case.

"This case is a perfect example," Judge Calabresi continued, "of you telling me that your office made some decisions with respect to what is right and just and true, and the District Court is thereby prohibited from having any say in the matter."

Before Mr. Appleton could respond, another panel member, Judge Roger J. Miner, said that if the panel did not follow the prosecution's sentencing recommendation, "you'll probably take our names and report them to the attorney general."

That prompted Justice Chester J. Straub to caution Mr. Appleton, "Be sure you spell them correctly."

"Especially Straub," Justice Calabresi said, triggering laughter in the courtroom. "S-T-R-A-U-B."

A former United States attorney in Brooklyn, Alan Vinegrad, described the exchange as far from unusual. There is a biting tone in many courtrooms lately, Mr. Vinegrad said.

Judge Shira A. Scheindlin of Federal District Court in Manhattan said that in her nearly 10 years on the federal bench, this was the first time she had ever seen judges of all political stripes so willing to go public over such a highly political matter.

Judge Johnson, for one, seems determined to hold his ground. "At some point you have to take a stand," he said. "If Congress wants to make a deck of cards for the judges like they did for the bad guys in Iraq, then make me the ace of spades."

Copyright 2003 The New York Times Company