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Federal judges are alarmed by a House Judiciary Committee probe into recent drug-sentencing decisions made by federal judges nationwide. The committee has asked the General Accounting Office, the investigative arm of Congress, to analyze three years’ worth of sentences in drug cases to determine whether judges are departing from congressionally mandated guidelines. The unusual investigation follows testimony last year by Minnesota Chief Judge James Rosenbaum, a critic of mandatory drug sentences in some cases. The Judiciary Committee’s report took issue with his testimony in support of changes to the drug-sentencing laws that would allow for lower minimums. At first, the committee sought to investigate only Rosenbaum’s sentences, but the GAO said it didn’t investigate individual judges. The inquiry was widened to all Minnesota federal judges and then all judges nationwide, according to a series of letters between U.S. Sentencing Commission Director Timothy McGrath and Richard Stana, who heads the GAO’s Homeland Security and Justice division. Judges were advised of the situation at this week’s Judicial Conference of the United States meeting in Washington, D.C. “The judges take seriously any threat to judicial independence and will closely monitor any such situation,” said Administrative Office of the U.S. Courts spokeswoman Karen Redmond, reading a prepared statement. Judiciary Committee spokesman Jeff Lungren said the focus was only on Minnesota federal judges, but the series of letters makes clear that the GAO will collect data on all judges in an effort to add “context” to the Minnesota bench. A common concern is that the GAO will profile individual judges, but GAO spokesman Jeff Nelligan denied that investigators will go through the sentences on a case-by-case basis. “We will do work for the committee, which will include information on the district of Minnesota, as well as nationwide data, in order to provide some context to this matter. However, nothing in our work product will identify individual judges by name,” Nelligan said. But one letter from the GAO to McGrath concludes: “We would note that upon completion of our statistical analyses, we may need to follow up on particular cases.” That seems to contradict the promise of anonymity. When asked to clarify the meaning of the letter, Nelligan demurred. “We just don’t comment on internal correspondence,” he said. Last year the committee heard testimony about recent changes to the federal drug-sentencing scheme, which lessened penalties for certain crimes. After investigating, the committee learned that Rosenbaum had used the “safety valve” provisions of the federal drug-sentencing schemes to depart downward in some of the cases he mentioned. In a letter from Leonidas Ralph Mecham, director of the AOC, to the executive committee of the Judicial Conference, Mecham said there is a 1988 memorandum of understanding that the Sentencing Commission will not provide Congress information on individual judges. Instead, the Sentencing Commission will “encrypt” case-specific data, according to Mecham. But some think the GAO’s subsequent letter, pointing out that investigators may follow up on specific cases, begs for an explanation. One may have been given in a letter dated March 14 from Comptroller General David Walker — head of the GAO — to the Judiciary Committee. In it, Walker said the committee would be looking at individual judges in the district of Minnesota and comparing them to nationwide data. Mecham also wrote that a review of readily available data shows that departures are common only in a handful of districts, mainly border districts. Although Minnesota abuts Canada, Mecham was likely referring to districts along the U.S. border with Mexico, where caseloads are exceedingly high. Lungren said the committee asked Rosenbaum for publicly available materials on the cases about which he testified, but Rosenbaum hasn’t responded so far. In response, Judiciary Chairman F. James Sensenbrenner, R-Wis., threatened to subpoena Rosenbaum. The judge’s lawyer called the threat unprecedented and said her client hasn’t decided how to respond. “We are working on that,” said Victoria Toensing, of Washington, D.C.’s diGenova & Toensing. Congress appears to be investigating the use of the sentencing “safety valve” upheld by the U.S. Supreme Court in United States v. Koon, a case that gave judges some discretion in sentencing. If the House dislikes that decision, it is at odds with Solicitor General Theodore Olson. He argued the case while in private practice and took the same position in a recent brief for the government. U.S. District Judge Vaughn Walker — of the Northern District of California — an outspoken critic of federal drug laws, is aware of the brewing controversy. “I don’t know where this is going,” Walker said. “My belief was that this is probably not serious.” The last federal judge to be subpoenaed by Congress sat on Walker’s Northern District bench. In 1953, after a runaway grand jury investigating corruption at the Internal Revenue Service was dissolved, news reports of the matter reached Washington. A House Judiciary subcommittee subpoenaed Northern District Judge Louis Goodman to explain what happened. Goodman defied the committee, refusing to answer questions either publicly or privately. Instead, he read a statement that concluded: “The integrity of the federal courts, upon which liberty and life depends, requires that such courts be maintained inviolate against the changing moods of public opinion.”

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