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WASHINGTON — The war between Congress and the federal bench over judicial authority in criminal cases is about to ensnarl the U.S. Sentencing Commission. The seven-member bipartisan panel sets policies that help determine the punishment faced by thousands of federal defendants every year. As ordered by Congress, the commission is engaged in a fast-track procedure to implement new sentencing rules that many lawyers and judges strongly oppose. Last spring, Congress, spurred by the Justice Department, overwhelmingly passed a law that aims to discourage trial judges from handing down sentences that fall below the ranges set forth by the commission under a sentencing guidelines system in effect since the 1980s. Many federal judges, from Chief Justice William Rehnquist down, have objected to what they see as unwarranted curbs on sentencing discretion. Opponents say the changes will prevent judges from imposing appropriate punishments, leave too much power in prosecutors’ hands and lead to unfair results. The judges have been joined by the defense bar and the American Bar Association. “Most judges do not disregard the law,” says a federal judge who has followed the issue closely. “When we find a case that troubles us, we look for ways to be creative, consistent with the law. The amendment is going to marginalize the role of the judge, which is a very bad thing.” The Sentencing Commission is caught in the middle of this controversy. The law at issue — known as the Feeney Amendment, after Rep. Thomas Feeney, R-Fla. — gave the commission six months to look into all the types of so-called downward departures in sentencing, to see which ones are being used too often by judges, and to change the rules to “substantially reduce” the number of downward departures. The commission, four of whose members are federal judges, is legally required to follow the lead of Congress. It is part of the judicial branch and has no separate legislative authority. Yet indications abound that several of its members are not convinced that the nation’s federal courts have a problem with overly lenient sentences that needs to be fixed. The subject is about to come to the fore. The commission is required to act by Oct. 27. A comment period recently ended, and the commission set a public hearing for Tuesday. The commissioners declined requests to be interviewed about their views before the hearing. But people who have spoken with them say that at least two panel members — Vice Chairs Ruben Castillo and William Sessions III, both U.S. district judges — are skeptical of the intent of the Feeney Amendment and of the data supporting it. Castillo, who sits in the Northern District of Illinois, and Sessions, who sits in the district of Vermont, are both Bill Clinton appointees to the bench. Commissioner Michael O’Neill, a former aide to Sen. Orrin Hatch, R-Utah, last month criticized the process under which the Feeney Amendment was passed, telling The Wall Street Journal that there should have been “a lot more debate” on the measure. “O’Neill does not want to see the guidelines bastardized,” says the federal judge who has followed the sentencing issue. “The guidelines are intended to impose uniformity, but they are also supposed to provide rationality.” The Feeney Amendment was tacked on to a bill intended to protect children from abuse. When it was pending, five of the commissioners — all those who were sitting at the time — wrote a letter objecting to it on the grounds that it would “change not only departure guideline policy, but also alter the traditional way in which guideline revisions are implemented.” Other recent developments accentuate the possibility of a clash, either open or behind the scenes, between the Sentencing Commission and Congress. There already is some bad blood between Congress and the commission. In another part of the Feeney Amendment, Congress limited the number of judges who can serve on the panel to three — a slap at the commission that stung many judges. In responding to Congress on the downward departure issue, the commission has several options. It can fully bow to congressional authority and cut back on major types of downward departures, such as the one for “over-representation of criminal history.” This departure occurs when a judge decides that a defendant’s criminal history, one factor in sentencing, gives an incorrectly harsh picture of the danger the convict poses to society. In putting forth the request for public comment, Sentencing Commission Chair Diana Murphy raised this provision as one that could be considered for change. Michael Courlander, a spokesman for the commission, says neither Murphy, a judge on the Eighth Circuit U.S. Court of Appeals, nor any other commissioner, has made up his or her mind on the issues before them. Another alternative for the commission is to openly defy Congress, dropping the next move squarely back in the legislature’s hands. That’s the approach proposed by the Federal Judges Association, an independent group that represents more than 90 percent of the nation’s 850-odd federal district and appeals judges. The FJA told the sentencing commission in a July 31 comment that the Feeney Amendment should be repealed. It did not suggest any form of compliance with it. “Change can be for the better. These changes were not. We believe that if the usual legislative process had been followed, this troubling amendment � would not have taken place,” the FJA wrote. The Judicial Conference, the official policy-making body for the administration of the federal courts, did not file any comments with the commission. Finally, the commission could adopt minor changes in the guidelines intended to satisfy congressional concerns without reducing judges’ ability to tailor their sentences in most cases. The commission’s hearing comes at a time when sentencing issues, and downward departures in particular, have become highly controversial. On July 28, Attorney General John Ashcroft asked line prosecutors to keep records on judges who frequently depart downward in sentencing and to appeal far more of those sentences. Many judges saw that step as an attempt to intimidate them into handing out longer sentences. Supreme Court Justice Anthony Kennedy, in an unusually outspoken talk, told the American Bar Association Aug. 9 that criminal sentences are actually too long. Kennedy said federal mandatory minimum sentences should be repealed. This statement by a respected Republican-appointed justice should provide considerable cover for those who argue that the average length of sentences ought not be increased. Barry Boss of D.C.’s Asbill Moffitt & Boss, co-chairman of the commission’s official Practitioners’ Advisory Group, says, “The Justice Department has embarked on a mission to eviscerate the autonomy of the Sentencing Commission in general and of sentencing judges in particular. They are trying to reduce the discretion of judges to rule against the government. I’ve never seen this kind of assault on the Sentencing Commission before.” The practitioners’ advisory panel, which is composed of criminal defense lawyers, suggested a way out to the commission in an Aug. 4 comment. It said the commission should take “a modest approach” to cutting back on downward departures. The panel said its calculations showed that the number of cases in which downward departures were granted was in the range of 7.5 percent to 12.2 percent of all federal criminal cases, well below what Congress had estimated. The panel criticized a “misperception created by the Department of Justice in Congress that there is an epidemic of leniency” and contended that the department provided “misleading statistics” to Congress to get the Feeney Amendment passed. Mark Corallo, a spokesman for the Justice Department, did not return a call. The advisory panel recommended minor changes in certain types of downward departures, but said that major changes aren’t needed. It’s unclear how much sway the advisory panel’s recommendations will have on the commission. The group represents the views of defense lawyers and would thus be expected to advocate for judicial discretion in sentencing. But the strong language of its report highlights the intensity of the issue. If the Sentencing Commission were to ignore the congressional directive, or even adopt a “modest” approach, it might well incur the out-and-out wrath of Congress — provoking a confrontation that the commission probably can’t win. On the other side is the pressure from the bench and the bar. In dealing with the dilemma, says one lawyer who follows the issue, the commission “has to recognize that it has an imperative, a mandate that it must implement under law, yet it also must recognize that it can’t act in a way that makes sentencing arbitrary or capricious.” “This is a really big deal,” says this lawyer. “The question is, how much does the Sentencing Commission give in to the threat from Congress?” Jonathan Groner is a reporter for Legal Times , a Recorder affiliate based in Washington, D.C.

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