mitchell holman

Blacklisting Judges
NY Times
8/9/03


The founding fathers, whose brilliant design for
the federal government was based on three coequal
branches, would be horrified to learn of Attorney
General John Ashcroft's latest idea for improving
the American justice system. Mr. Ashcroft has ordered
federal prosecutors to start collecting information
on federal judges who give sentences that are lighter
than those suggested by federal guidelines. Critics
are right when they say this has the potential to
create a "blacklist" of judges who could then be
subjected to intimidation.

Congress established the United States Sentencing
Commission in the mid-1980's, and charged it with
developing guidelines to bring greater uniformity
to sentences handed down by federal courts. The
guidelines provide a range of sentences a judge can
hand down for particular crimes. But they also permit
judges discretion to impose a more lenient sentence,
known as a "downward departure," if they can justify
the decision. Judges frequently depart downward at the
urging of the government, to reward defendants who
cooperate with prosecutors.

But the administration and its allies in Congress have
made no secret of their unhappiness with judges who
impose more lenient sentences than guidelines call for.
They have tried a variety of methods of pressuring judges
to see things their way, including starting a Congressional
investigation into the sentencing practices of James
Rosenbaum, a United States District Court judge in Minnesota.

Mr. Ashcroft's latest initiative raises these pressures
to a new level. Under the new policy, federal prosecutors
will be required in many cases to report when a judge
departs downward from the sentence recommended by the
federal guidelines. The Justice Department has said it
intends to use the data to identify how often particular
judges depart downward. Obviously, judges are going to be
worried about coming in high on the list, and those who
do will wonder if they will be subject to intimidation,
as Judge Rosenbaum was.

At the very least, the Ashcroft plan would subject federal
prosecutors to an unusual, and undesirable, degree of top-
down management. Right now, individual prosecutors decide
when to appeal a judge's sentence. Mr. Ashcroft seems to
want that decision to be made after a review from Washington.
A prosecutor who feels a given judge is consistently handing
down sentences that are too mild can certainly let his or
her feelings be known to superiors. But this new, rigorous
and rigid reporting system seems to treat prosecutors as
lackeys, and judges as some kind of minor civil servants who
can be ordered around by the president and his appointees.

By trying to make federal judges yield to political pressure
from Washington, the Bush administration is engaging in a
radical attack on our constitutional system. Even Chief Justice
William Rehnquist, whose conservative credentials are unassailable,
has warned that collecting data on judges' sentencing practices
"could amount to an unwarranted and ill-considered effort to
intimidate individual judges." Mr. Ashcroft should heed these words,
and abandon his dangerous war on the judicial branch.

dana

Bullshit, we should be impeaching from office the Judges who are not doing
the job correctly. This is not an attack on the Constitution, this is
reminding the Judges that there is a Constitution. Enough of this legislation from the bench.

mitchell holman

So you DON'T want an independent
judiciary, but one that does what the
Congress tells it to.

Does that apply when Congress is
run by the Demos again?

mitchell holman

Blacklisting Judges
NY Times
8/9/03


The founding fathers, whose brilliant design for
the federal government was based on three coequal
branches, would be horrified to learn of Attorney
General John Ashcroft's latest idea for improving
the American justice system. Mr. Ashcroft has ordered
federal prosecutors to start collecting information
on federal judges who give sentences that are lighter
than those suggested by federal guidelines. Critics
are right when they say this has the potential to
create a "blacklist" of judges who could then be
subjected to intimidation.

Congress established the United States Sentencing
Commission in the mid-1980's, and charged it with
developing guidelines to bring greater uniformity
to sentences handed down by federal courts. The
guidelines provide a range of sentences a judge can
hand down for particular crimes. But they also permit
judges discretion to impose a more lenient sentence,
known as a "downward departure," if they can justify
the decision. Judges frequently depart downward at the
urging of the government, to reward defendants who
cooperate with prosecutors.

But the administration and its allies in Congress have
made no secret of their unhappiness with judges who
impose more lenient sentences than guidelines call for.
They have tried a variety of methods of pressuring judges
to see things their way, including starting a Congressional
investigation into the sentencing practices of James
Rosenbaum, a United States District Court judge in Minnesota.

Mr. Ashcroft's latest initiative raises these pressures
to a new level. Under the new policy, federal prosecutors
will be required in many cases to report when a judge
departs downward from the sentence recommended by the
federal guidelines. The Justice Department has said it
intends to use the data to identify how often particular
judges depart downward. Obviously, judges are going to be
worried about coming in high on the list, and those who
do will wonder if they will be subject to intimidation,
as Judge Rosenbaum was.

At the very least, the Ashcroft plan would subject federal
prosecutors to an unusual, and undesirable, degree of top-
down management. Right now, individual prosecutors decide
when to appeal a judge's sentence. Mr. Ashcroft seems to
want that decision to be made after a review from Washington.
A prosecutor who feels a given judge is consistently handing
down sentences that are too mild can certainly let his or
her feelings be known to superiors. But this new, rigorous
and rigid reporting system seems to treat prosecutors as
lackeys, and judges as some kind of minor civil servants who
can be ordered around by the president and his appointees.

By trying to make federal judges yield to political pressure
from Washington, the Bush administration is engaging in a
radical attack on our constitutional system. Even Chief Justice
William Rehnquist, whose conservative credentials are unassailable,
has warned that collecting data on judges' sentencing practices
"could amount to an unwarranted and ill-considered effort to
intimidate individual judges." Mr. Ashcroft should heed these words,
and abandon his dangerous war on the judicial branch.

dana

Bullshit, we should be impeaching from office the Judges who are not doing
the job correctly. This is not an attack on the Constitution, this is
reminding the Judges that there is a Constitution. Enough of this legislation from the bench.

mitchell holman

So you DON'T want an independent
judiciary, but one that does what the
Congress tells it to.

Does that apply when Congress is
run by the Demos again?