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Chief Justice William Rehnquist delivered a New Year’s Day scolding to Congress over a controversial law that attempts to crack down on what lawmakers saw as overly lenient sentencing policies on the federal bench. In his annual Jan. 1 report on the federal judiciary, Rehnquist asserted the law could improperly “intimidate individual judges” and threaten judicial independence. Passed hurriedly in April, the law increases the amount of documentation and reporting required when judges levy criminal sentences that are lighter than those established by sentencing guidelines. It also requires that courts submit to Congress data about individual judges’ sentencing decisions. In addition to bemoaning the law itself, Rehnquist used even more passionate rhetoric to highlight what he sees as the Congress’ failure to consult the judiciary before passing it. “It seems that the traditional interchange between the Congress and the Judiciary broke down when Congress enacted what is known as the PROTECT Act,” Rehnquist said. “Obtaining the views of the judiciary before the PROTECT Act was enacted would have given all members of Congress the benefit of a perspective they may not have been aware of, on this aspect of the legislation and other aspects that deal with a delicate process that judges understand very well.” Rehnquist acknowledged that Congress has the power to pass laws affecting sentencing without first consulting anyone else. But he went on to quote the late Chief Justice Charles Evans Hughes, who wrote about the byplay between the legislative and judicial branches in a 1939 address to Congress. “In the great enterprise of making democracy workable we are all partners, one member of our body politic cannot say to another ‘I have no need of thee,’” Hughes said. “We work in successful cooperation by being true, each department to its own function, and all to the spirit which pervades our institutions.” Rehnquist also reviewed the history of cooperative efforts between Congress and the judiciary on laws affecting the judicial branch. The law targeted by Rehnquist was part of the PROTECT Act — short for the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act — and was known as the Feeney Amendment after sponsor Rep. Tom Feeney, R-Fla. Feeney and his staff could not be reached for comment. Echoing comments he made soon after the Feeney Amendment was passed, Rehnquist in his Jan. 1 report said the law’s reporting requirements could lead Congress to question the sentencing practices of individual judges in ways that “could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties.” Rehnquist added that, in the absence of the law, anyone at the Justice Department interested in judge-specific sentencing information could find it through U.S. Attorneys “on an informal basis,” and any departures from sentencing guidelines deemed unwarranted could be appealed. The law also aroused the ire of the Judicial Conference of the United States, the judicial policy-making body chaired by Rehnquist. On Sept. 23, the panel called for the repeal of the sentencing features of the law. Repeal measures have been introduced in both houses of Congress by Democrats, but no action has been taken. The U.S. Sentencing Commission in October issued a report suggesting that, based on early indications, the new law will have a “broad impact” on sentencing departures. Among other matters touched on by Rehnquist in his annual report, the chief justice also lamented the failure of Congress to raise judicial salaries significantly or to pass a permanent 2004 appropriations bill for the judiciary. A 1.5 percent cost-of-living adjustment took effect on Jan. 1, but any more increases depend on further action by Congress. Rehnquist said individual federal courts might have to impose hiring freezes or furloughs if Congress does not pass an appropriations bill soon.

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