Stupid Sentencing Tricks

Not so long ago, the rap on U.S. District Court Judge James Rosenbaum was that he was a pretty conservative guy. A former U.S. prosecutor, he campaigned for Sen. Rudy Boschwitz. In 1985, the Republican senator nominated him to the federal bench; Ronald Reagan appointed him. He enjoys a decades-long friendship with Rep. Jim Ramstad, another law-and-order Minnesota Republican. Thanks to his record, a year and a half ago he was appointed chief judge for the District of Minnesota.

But these days Rosenbaum bears a surprising resemblance to a left-wing scriptwriter trying to survive the McCarthy era. A year ago, the 58-year-old jurist told the U.S. Senate Judiciary Committee that he thinks the federal guidelines that dictate proper sentences for criminals are too strict--particularly for drug offenders. The guidelines, he told the senators, fail to distinguish between drug dealers and first-time offenders and casual users. As a result, judges occasionally depart from the guidelines in order to hand out sentences they deem more fair. Rosenbaum's remarks failed to sway the senators, who promptly passed the bill at hand, a measure to increase penalties for the least serious drug offenses.

But in the Bush era the price of dissent--any dissent--has risen considerably, and stiffer guidelines weren't the only thing Rosenbaum got for his troubles. In the months since his testimony, Senate Republicans have called him a liar and ordered an investigation into the sentences handed down by Rosenbaum and the rest of the state's federal bench. In March, the head of the committee began threatening to subpoena Rosenbaum and his records, an unprecedented move that conservatives and liberals alike have decried as a threat to judicial independence.

Finally, last month, Congress tucked an amendment further tying judges' hands into the so-called Amber Alert bill, which created the much-touted nationwide alert system for recovering missing children. Lawmakers, rushing to adjourn for spring break, voted unanimously to pass the law. The amendment, named for Florida freshman Rep. Tom Feeney, a Republican, makes it harder for judges to depart from sentencing guidelines. The new law, backed by U.S. Attorney General John Ashcroft, requires that each and every departure from established sentencing guidelines be reported to Congress and reviewed by a federal appeals court. The law also reduces the number of judges on the U.S. Sentencing Commission, the panel that draws up the guidelines.

The amendment was attached to the bill without much discussion and with no public hearings. Had they asked, the senators would have heard from a host of powerful opponents spanning the ideological spectrum, including the American Bar Association, the national Association of Criminal Defense Lawyers, the U.S. Judicial Conference, the majority of the members of the Sentencing Commission itself, and William Rehnquist, chief justice of the U.S. Supreme Court. The amendment, Rehnquist opined, "would seriously impair the ability of the courts to impose just and reasonable sentences."

Congress created the Sentencing Commission in 1984 in an attempt to end the disparities in punishment meted out by different judges. The guidelines are grids: One side lists levels of severity of a particular type of offense (say, the quantity of drugs in an offender's possession); the other side is used to quantify the offender's criminal record. Typically, each spot on the grid lists a range of months that comprise an appropriate sentence. Judges may hand down a sentence anywhere within the range.

The stringent guidelines led to a mushrooming U.S. prison population. There are currently more than eight million people behind bars worldwide. Two million of those are in the United States, and approximately one-fourth of that number are incarcerated for nonviolent drug offenses. According to the most recent issue of Sojourners magazine, the United States locks up more people on drug offenses than are contained in the entire prison system of the European Union--whose population is higher by 90 million.

 

Rehnquist and other critics had hoped that lawmakers would at least hold hearings before passing the new rules. Even a cursory review of sentencing statistics would have shown that recalcitrant judges aren't the main source of departures, they note. Currently, judges stray from the guidelines in just 10 percent to 15 percent of cases.

Almost 80 percent of departures from sentencing rules stem from government plea bargaining and from attempts by prosecutors to deal with skyrocketing caseloads in Mexican-border states. Yet the Feeney Amendment does not change the rules regarding departures for prosecutors, only judges.

Judges and defense attorneys have long griped that the system is skewed by the prosecutorial prerogative to show leniency to defendants who have offered "substantial assistance." The federal guidelines are so strict that a major drug dealer can get a drastically reduced sentence by handing over information on his suppliers, they complain--but there are no comparable loopholes available to the dealer's girlfriend, in whose house he might have done business, or to his customers.