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Paul Friedman is peeved. The U.S. district judge in the District of Columbia thinks what Congress — with a helpful shove from Attorney General John Ashcroft — did this year to criminal sentencing is “terrible.” To the consternation of Friedman and most of the nation’s federal judges, Congress passed the so-called Feeney Amendment last spring, which required the U.S. Sentencing Commission to cut back on judges’ power to impose sentences shorter than recommended by federal guidelines. “I have to believe that Congress was misled about the statistics concerning downward departures,” says Friedman. “Most judges are conscientious, take our oath seriously, and try to apply the law. The notion that we should lose all our sentencing discretion is ludicrous. A minuscule amount of anecdotal evidence is what’s driving the legislation.” In response, Friedman and one of his colleagues on the federal trial bench in the District, Senior Judge Thomas Penfield Jackson, have changed their jury instructions in criminal cases. Both Friedman and Jackson now tell jurors that the sentence to be meted out in the case of a conviction is not the jury’s concern but rather is determined by Congress and by the sentencing commission. Standard jury instructions have judges say that sentencing is up to the discretion of the trial judge, but Friedman and Jackson believe that this is essentially not the case anymore. Friedman is a President Bill Clinton appointee to the bench, while Jackson was named by President Ronald Reagan. The judges’ action marks one of the latest skirmishes in a pitched battle that pits Congress and the Department of Justice against the federal judges — a battle that raged throughout 2003 and caught the Sentencing Commission in the middle. In April, Congress, after a concerted lobbying campaign by the DOJ, overwhelmingly passed the Feeney Amendment. The measure, named for Rep. Tom Feeney (R-Fla.), gave the Sentencing Commission six months to write new guidelines to sharply reduce the number of downward departures. Attorney General Ashcroft thinks some federal judges routinely hand down sentences that are too lenient. His Justice Department took a lead role in pushing for approval of the Feeney Amendment. Most judges, on the other hand, want to retain their discretion to reduce a sentence, for a specific reason, below the level set by the guidelines. In fact, in an August speech, Supreme Court Justice Anthony Kennedy, a Republican appointee, said he thinks sentences are generally too long. In response to the Feeney Amendment, the sentencing panel approved in October a package of changes that ban downward departures that are based entirely on plea bargains and guilty pleas. The commissioners also voted to limit departures based on acceptance of responsibility, the payment of restitution to victims, addiction, and other factors. As commission members expected, the panel’s action satisfied neither side. At a commission meeting, Eric Jaso, a DOJ lawyer, said the panel had failed to meet Congress’ dictate that it essentially eliminate downward departures. After the panel took its action, Rep. Feeney told The Wall Street Journal that there were “exceptions that a lenient judge can drive a truck through.” Jaso indicated at the time that the department might go back to Congress and seek even tougher legislation. Monica Goodling, a DOJ spokeswoman, did not return two calls last week about the matter. It’s not just federal judges in the District who are unhappy. Recently, one judge in the Eastern District of New York, in Brooklyn, was removed from a drug case by an appeals panel on the grounds that the trial judge’s decisions were improperly affected by his “annoyance” with the Sentencing Guidelines. And Judge John Martin Jr. of the Southern District of New York stepped down from his lifetime appointment in September, citing the sentencing restrictions as one of his motivations.

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