An emerging conflict between Congress and the Judiciary over sentencing authority finds an unlikely subject at the center of the dispute: Chief Judge James Rosenbaum of the United States District Court for the District of Minnesota.

by Douglas A. Kelley

The great object of my fear is the federal judiciary. That body, like gravity, ever acting with noiseless foot & unalarming advance, [is] gaining ground step by step ... .
Let the eye of vigilance never be closed.

-- Thomas Jefferson

When Chief Judge James Rosenbaum testified before the House Judiciary Committee in May of 2002 about a seemingly obscure provision of the Sentencing Guidelines, little did he know that he was stepping into the vortex of a swirling controversy between an increasingly emboldened, conservative majority in Congress and the federal judiciary over the role of judges in sentencing. For his efforts, the Committee accused Rosenbaum of misleading testimony and threatened to subpoena his sentencing records. This prompted none other than Chief Justice Rehnquist to say that such a subpoena would constitute an unwarranted (and impliedly unconstitutional) intrusion on the independence of the Judiciary. Congress responded with sweeping changes to the sentencing guidelines, overruling previous Supreme Court precedent that allowed judges the discretion to depart from the guidelines in certain circumstances, severely limiting the reasons a judge could depart downward, and specifically requiring the judiciary to respond to subpoenas for individual judges' records. This last provision obviously sets the stage for a possible constitutional confrontation. Apparently, in 2003, the 200th anniversary of Marbury v. Madison, the lines of demarcation between the legislative and judicial branches are still in dispute.

This article will briefly review the history of the sentencing guidelines, discuss the recent changes which took the form of an amendment to the Amber Alert bill, and provide context for evaluating this unfolding controversy.

Sentencing Guidelines

For most of our country's history, the primary role in sentencing was vested in the district court. Congress provided maximum terms of incarceration but allowed federal judges unbounded discretion to sentence offenders from probation, no time at all, to the statutory limit. Recognizing that the typical defendant would serve one-third of the sentence, the judge -- with input from prosecutor, the defense, and the probation officer -- would fashion the sentence to fit the individual and the crime. Judges were not required to give reasons for their sentences, and so long as they stayed within the statutory maximums, their sentences were not subject to appeal.

By the 1970s, the system came under widespread criticism for disparities in sentencing nationwide. Ironically, it was a federal judge, Judge Marvin Frankel, who lambasted the system as "arbitrary and discriminatory" and proposed a commission on sentencing.2 Senator Edward M. Kennedy (D-Mass.) was one of the original proponents in Congress of the idea. He joined with Senator Strom Thurmond (R-N.C.) to pass The Sentencing Reform Act of 1984, which established the U.S. Sentencing Commission and charged it with promulgating guidelines.3

Under the guidelines, a judge first determines which of the 43 categories governs the crime, thereby establishing the "base offense level." Next, the judge determines which of six "criminal history" categories apply to the defendant, given his prior record. Then, the judge turns to the matrix (called the "sentencing tables"), grades the crime and the criminal history, and where the axes meet, finds the appropriate sentencing range. Sentences may be adjusted upward for aggravating circumstances or downward for mitigating circumstances. In Koon v. United States, 518 U.S. 81 (1996), a Los Angeles case sparked by the arrest and beating of Rodney King, the U.S. Supreme Court held that judges could depart from the guidelines but had to state their reasons in writing, subjecting the sentence to an appeal.

Not surprisingly, judicial surveys have confirmed widespread disapproval of the guidelines among the judiciary. A 1992 poll found that more than half of all federal judges believe that the current system should be completely eliminated, while a 1997 survey concluded that more than two-thirds of the judges view the guidelines as unnecessary.4

Judge Rosenbaum is an unlikely target for conservative ire, having been nominated by conservative Senator Rudy Boschwitz and appointed by Ronald Reagan. Judge Rosenbaum's reputation among the defense bar is that he is a tough sentencing judge. And, according to the Washington Post, Rosenbaum's sentences for drug offenders exceeded the national median each year between 1998 and 2002.5 Further, Rosenbaum has not been the most outspoken judge in his opposition to the guidelines. At least one federal judge resigned the bench over the guidelines, saying that they "dehumanized the sentencing process" and transformed it into a "numbers game."6 Locally, former Chief Judge Paul A. Magnuson has been far more critical of the guidelines than Judge Rosenbaum. In January 2001, Magnuson recused himself rather than sentence a first-time drug offender with what he believed was an unjust sentence under the guidelines. The test of fairness for Judge Magnuson was whether he could look the defendant in the eyes as he pronounced the sentence. As he stepped down from the Chief Judgeship in 2001, Magnuson was quoted as saying, "I give a lot of sentences today that I just can't look the person in the eye."7

Judiciary Committee Hearing

Little wonder then that an organization called Families Against Mandatory Minimums requested Judge Magnuson to testify on its behalf at a House Judiciary Committee meeting in May 2002. Judge Magnuson developed a scheduling conflict and Judge Rosenbaum substituted for him at the last minute. Rosenbaum testified at the invitation of the minority Democrats.

Rosenbaum testified about a proposed guidelines amendment dealing with narcotics offenders. The proposal would permit courts to depart downward upon a finding of fact that a defendant's part in committing the offense made him substantially less culpable than the average participant.8 The amendment was intended to apply to lower-level conspirators who did not participate in planning the conspiracy or share in its profits.9 The thrust of Rosenbaum's comments was that he believed it would be more just to focus on the role of these lower-level perpetrators instead of on the quantity of drugs in the entire conspiracy.

Where Judge Rosenbaum got crosswise with the committee was in how he portrayed the examples he brought to their attention. The 14 examples included not only cases over which he had presided, but cases of other judges from the District of Minnesota. Generally, Judge Rosenbaum would introduce defendants in his examples by their initials, describe why they were lower-level participants, state what their base offense level would be under the existing guidelines, and recount what their reduced calculation would be under the proposed amendment. For example:

Now, let me tell you about V.H.D.. This young woman made phone calls under the direction of her boyfriend, each according to his instruction. She allowed her apartment to be used to store and process cocaine. None of her activities were independent, and she got no percentage of the deals. She was found to be a minor participant. Under the present Guideline she was rated at a level 27, and subject to a sentence of 87-108 months, or 7-9 years. Under the proposed amendment, she would have had a base level of 25 and faced 57-71 months, or between 5-6 years.10

Judge Rosenbaum has been known to employ rhetorical flourishes on occasion in his speeches and writings. This occasion was no different. While describing the role of couriers, he stated, "And they frequently have no idea what they are carrying or receiving, and if they have an idea of what, they usually don't know how much."11 Later in the hearing Rosenbaum corrected his remarks and stated that each of the defendants knowingly transported narcotics.12

Judge Rosenbaum then closed with these words:

Please consider giving the Judiciary the chance to do the job for which it was chosen, and designated by the Constitution to perform. We work with this system, and those who operate in it every day of our lives. Please give us the tools to make it more fair and just.13

The judge's testimony was not well-received by the Committee Republicans. Within a week, Subcommittee Chair Lamar Smith (R-Tex.), had written to Judge Rosenbaum essentially requesting all of the documents supporting every example Rosenbaum had cited and propounding a series of interrogatories to the judge. Then, perhaps presaging that this would not be a collegial exchange, Smith asked Rosenbaum to "identify any case in which you declined to grant a motion for judgment of acquittal ... where the facts were as you described ...[in] your written statement [where the couriers had no idea what they were carrying or receiving.]"14

Smith and Rosenbaum exchanged a series of letters throughout the summer of 2002 that can only be described as tense. Rosenbaum cited confidentiality with regard to certain requested sentencing documents and when asked for transcripts of certain of his sentencing hearings, gave them his court reporter's telephone number. In the Committee's view, he was suspected of trying to cover things up and of being uncooperative in the investigation.

Judiciary Committee Report

After poring over the documents, the Committee issued its report on October 31, 2002. The report devoted over 20 pages to the Committee's criticisms of Judge Rosenbaum's testimony. The first criticism took Rosenbaum to task for his rhetorical flourish that the couriers did not know what they were carrying. Even though the judge had corrected his testimony at the hearing, the report chastised him for even suggesting that a defendant could be convicted on legally insufficient evidence.15 The next area of criticism was that Rosenbaum had consistently misled the Committee about his sentencing examples because the actual sentences imposed were below the guideline sentences about which he testified. The Committee accused Rosenbaum of "inaccurately representing the sentences"16 and at one point in the report, they characterized his statements as "unquestionably false."17

The last major criticism leveled at Rosenbaum was that his "record of hostility" to the guidelines undermined the persuasive value of his testimony.18 The Committee cited several examples in which it said that he had illegally departed downward. In one example, the statute required a ten-year minimum sentence. The guidelines called for a range of 121-151 months. Judge Rosenbaum sentenced the defendant to 120 months and then addressed the defendant directly:

I just sentenced you to one month less than the Guidelines. The Guidelines were calculated by a computer which apparently was not satisfied with the fact that 10 years is 120 months. And so we have a ridiculous extra month which I have taken off. Now that represents an illegal departure ... .19

After the report was released, Subcommittee Chairman Smith stated "the report points out misleading statements by Judge Rosenbaum. I am extremely troubled by his testimony." Representative Robert C. "Bobby" Scott (D-Va.), ranking Democrat on the Subcommittee, defended Rosenbaum, calling the Republican's criticism of his testimony ridiculous and based on semantics. Scott said the Republicans were intent on punishing Rosenbaum because they did not like his views on the guidelines.20

The Judiciary Committee continued to seek Judge Rosenbaum's sentencing records. In February 2003, the Committee asked the General Accounting Office to gather his decisions. While the record is somewhat unclear, it is apparent that the Committee encountered resistance to the production of an individual judge's records. Having been unsuccessful in these other avenues of approach, the Committee threatened to directly subpoena Judge Rosenbaum's records in March 2003. Subcommittee Chairman, Howard Coble (R- N.C.), the successor to Smith, said:

[T]he Committee isn't on "a witch hunt for every district court judge in the country." But the Committee members didn't rule out seeking disciplinary action, including impeachment.21

The next day, House Republicans agreed to delay authorizing the subpoenas when the ranking Democrat on the Committee, Michigan Rep. John Conyers, helped broker a compromise. Subcommittee Chair Coble was quoted as saying:

Judge Rosenbaum "imposed illegal sentences in at least two cases" and that the materials sought may "reveal further illegality on his part in sentencing additional criminal defendants."

This prompted Judge Magnuson to comment that he could not "think of a greater invasion on the independence of the Judiciary."22 The New York Times commented that Rosenbaum was:

facing a Kafkaesque witch hunt, with Congress making dangerously improper demands for his files and notes ... . The attack on Judge Rosenbaum is not only a sign of the right's continuing attempt to hijack the federal judiciary but also trespasses on the constitutional separation of powers. It must stop.23

A thorough analysis of the Committee's allegations is beyond the scope of this article. However, some preliminary observations are appropriate. Concerning the allegation that his testimony was misleading, one needs to keep the purpose and the context of his testimony in mind. The ultimate purpose of his testimony was to express his opinion that lower sentences would be more just. While one can agree or disagree with opinions, opinions do not form the basis for false statements. Rosenbaum supported his argument with examples. The purpose of the examples was to compare the old provision to the new one in calculating the base offense level. In making that comparison, subsequent adjustments and the sentence that was actually imposed are irrelevant.

Turning to the charge that Rosenbaum imposed "illegal" sentences, one could hardly imagine that nicking a month off the sentence of one defendant out of the thousands of defendants sentenced by the judge would constitute an impeachable offense.

When asked about the Committee's allegations, Victoria Toensing, Judge Rosenbaum's lawyer, stated: "Every statement he made at the hearing was truthful and every sentence he imposed was legal."

Finally, with regard to Judge Rosenbaum's rhetorical flourish concerning couriers, Toensing informed me that her client wasn't the only one to make such a comment. Senator Orrin Hatch (R-Utah), while debating a proposed amendment to the Amber Alert Bill (the Feeney Amendment) stated:

I agree with the Senator. I have seen the girlfriend courier go to prison for 10 years when she did not even know what was in the package, or at least claimed she did not, while the boyfriend, the drug dealer, pleaded State's evidence and gets off. Frankly, I do not like that either.24

The Feeney Amendment

If there was any doubt about congressional power to access an individual judge's sentencing records, Congress sought to resolve that doubt emphatically in its favor. While the House Judiciary Committee was pressing for the Rosenbaum documents and while the country was mesmerized by live reports from the Iraq war, freshman Congressman Tom Feeney (R-Fla.), added an amendment to the Amber Alert Bill that would constitute the most revolutionary changes to the sentencing guidelines since their inception. No hearings were held on the proposal, which was dubbed the "stealth amendment." Neither the Judicial Conference nor the aba was solicited for their views. The amendment passed the House on March 27, 2003. Viewed in its entirety, the amendment clearly constitutes a shot across the bow of the entire judiciary.

The underlying rationale for the Feeney Amendment is that federal judges are soft on crime and give too many downward departures. Accordingly, the amendment directs the Sentencing Commission to promulgate appropriate amendments to the existing guidelines "to ensure that the incidence of downward departures are [sic] substantially reduced."25

Next, the amendment considerably restricts the authorized reasons for downward departures by prohibiting departures based on factors not enumerated in the guidelines.26 It specifically prohibits departures based on youth, physical impairment, gambling dependency, aberrant behavior, family ties and responsibilities, military service and good works, and diminished capacity.27 The amendment prevents judicial consideration of whether a case falls outside the "heartland" of the guidelines as was permitted by the Supreme Court in Koon v. United States.28

The amendment also changes the standard of review on appeal by requiring a de novo review of a district court's fact-based departure decisions. This overrules the abuse of discretion standard of review set forth by the Supreme Court.29

To address any possible ambiguity arising from the Rosenbaum situation, the amendment requires the chief judge of each district to submit a written report of the sentence in every criminal case to the Guidelines Commission, noting any departures, "within 30 days following entry of judgment … ."30 The amendment also directs the Commission to make the data available to the House and Senate committees on the Judiciary, and the attorney general "including the identity of the sentencing judge."31

In order to remind judges that Congress will be monitoring the situation closely, the amendment requires the attorney general to report any downward departure within 15 days to the committees on the Judiciary in the House and Senate, again, including the identity of the district court judge.32 In addition, the attorney general must also report within five days all decisions by the solicitor general to appeal downward departures, along with the reasons for any such decision.33

In Congress' final shot across the Judiciary's bow, the Feeney Amendment alters the composition of the Sentencing Guidelines Commission. Under present law "at least three" members have to be judges. Under the amendment "not more than three" can be judges.34

Practitioners should note that the Congress-passed guideline amendments became effective on April 30, 2003, and were to become effective regardless of whether the Sentencing Commission was able to incorporate them into the sentencing guidelines.35

Reaction to the Feeney Amendment in the legal community was largely negative. Chief Justice Rehnquist stated that the legislation "would do serious harm to the basic structure of the sentencing guideline system and would seriously impair the ability of courts to impose just and responsible sentences."36 Aba President Alfred P. Carlton, Jr. opined that the Feeney Amendment would "fundamentally alter the carefully crafted and balanced system established by the Sentencing Reform Act, without any of the customary safeguards of the legislative process."37 Ronald Weich, former counsel to the Senate Judiciary Committee and the Sentencing Commission, expounded:

This is the most important development in federal sentencing since the passage of the 1984 Sentencing Reform Act, and it happened with virtually no debate in little more than a week. This is a large step toward transforming the U.S. sentencing guidelines into one massive mandatory minimum.38

Even the libertarian Washington-based Cato Institute, which is usually associated with conservative causes, opposed the bill. Eric Luna, professor of law at the University of Utah and a Cato policy analyst said:

For 15 years, the federal sentencing guidelines have been an affront to justice . They are convoluted, hyper-technical and transform District Court judges into accountants rather than legal decision makers. ... The effort to expand these guidelines would make a horrible system even worse, eliminating the last bit of discretion vested in trial judges and expressly overruling the Supreme Court's one sensible decision in this area.39

Luna also asserts that by reducing the role of the judge to that of an accountant or a computer, Congress has removed moral judgment from sentencing. He further points out that the excessive complexity of the guidelines transforms a sentencing hearing into a nearly unintelligible event. He cites the following colloquy reported by the Washington Post:

The court finds that the base offense level is 20. ... Pursuant to Guideline 2K2.1(B)(4), the offense level is increased by two levels [to 22]. ... The court notes that the criminal convictions ... result in a total criminal history category score of 18. At the time of the instant offense ... the defendant was serving a parole sentence in two causes of action. And pursuant to Sentencing Guidelines 4A1.1(D), two points are therefore added. The total criminal history points is 20. And according to the sentencing guidelines Chapter 5, Part A, 20 criminal history points establish a criminal history category of 6. ... [As a result] the guideline range for imprisonment is 84 to 105 months.40

This is in direct contrast to the elegance and simplicity of sentencing before the guidelines. Judge Edward J. Devitt was the master. After hearing from the prosecutor, the defense lawyer and the defendant, Judge Devitt would peer down from the bench at the defendant and the colloquy would go something like this:

Mr. Jones. You have been a bad man. You are hereby sentenced to the custody of the Attorney General of the United States for a period of incarceration of 30 years. Good luck to you.

The wisdom of these amendments will be debated for some time. In the meantime, on May 20, 2003, Senator Kennedy joined by Senators Leahy, Feingold, and Lautenberg introduced S.1086, The Judges Act, specifically to repeal most provisions of the Feeney Amendment. Congressman Conyers introduced a companion bill in the House.41

An important remaining question is what does all this mean for Judge Rosenbaum? The short answer is, it's too early to tell. As this article goes to press, the documents requested by the Judiciary Committee are being gathered by a United States Magistrate. Pursuant to an agreement between Victoria Toensing and the House Judiciary Committee, the administrative office of the United States courts was allowed to gather the documents and provide them to the Committee. Transcripts have been requested of the court reporter. The investigation continues.

Chief Justice Rehnquist's Remarks

In the meantime, Judge Rosenbaum has received support from an important source. On May 5, 2003, Chief Justice Rehnquist was the speaker at a meeting of the Federal Judges Associates Board of Directors. One of the topics he addressed was:

the recent efforts by some in Congress to look into downward departures in sentencing by federal judges, in particular our colleague Judge James Rosenbaum. We can all recognize that Congress has a legitimate interest in obtaining information which will assist in the legislative process. But the efforts to obtain information may not threaten judicial independence or the established principle that a judge's judicial acts cannot serve as a basis for his removal from office.42

Rehnquist said that it was clearly within Congress' province to define what acts shall be criminal and to determine what sentences shall be imposed upon those convicted of such acts. Rehnquist also said that it was perfectly appropriate for Congress to collect information about sentencing practices by federal judges throughout the country. He then said:

But one portion of the law provides for the collection of such information on an individualized judge-by-judge basis. This, it seems to me, is more troubling. For side-by-side with the broad authority of Congress to legislate and gather information in this area is the principle that federal judges may not be removed from office for their judicial acts.43

Then Justice Rehnquist discussed the impeachment trial of Supreme Court Justice Samuel Chase during the Jefferson Administration. Chase had been impeached by the House at the instigation of President Thomas Jefferson. Chase was charged with specific allegations of judicial misconduct. Even though Republicans had a majority, they acquitted him. The chief justice drew this conclusion:

[I]t represented a judgment that impeachment should not be used to remove a judge for conduct in the exercise of his judicial duties. The political precedent set by Chase's acquittal has governed that day to this: a judge's judicial acts may not serve as a basis for impeachment.44

Rehnquist then noted that since the Chase trial, 11 federal judges have been impeached. He concluded that the convictions were for offenses involving financial improprieties, income tax evasions, and other matters "far removed from judicial acts."45

Rehnquist recognized that Congress had the right to seek sentencing statistics about downward departures but concluded with this caveat:

There can also be no doubt that the subject matter of the questions, and whether they target the judicial decisions of individual federal judges, could amount to an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties. We must hope that these inquiries are designed to obtain information in aid of the congressional legislative function, and will not trench upon judicial independence.46

The stage has been set. The legislative branch has staked out its position in the Feeney Amendment. The judicial branch has not officially spoken on the matter. It is clear this debate is not about Judge Jim Rosenbaum. This debate is about the appropriate role of two powerful, coequal branches of government. This debate is as old as the Republic. It began with Marbury v. Madison and continues today. Stay tuned. This should be a matter of concern to every lawyer. M

Notes
1 Letter to Spencer Roane, Mar. 9, 1821, quoted in James F. Simon, What Kind Of Nation 9 (2002).

2 Marvin E. Frankel, Criminal Sentences: Law Without Order (New York: Hill & Wang 1973) at 5.

3 18 U.S.C. §3551, et seq.

4 Eric Luna , "Misguided Guidelines: A Critique of Federal Sentencing," 458 Policy Analysis 3, n.16 (citing Federal Judicial Center, the United States Sentencing Guidelines: Results of the Federal Judicial Center's 1996 Survey (Washington: Federal Judicial Center, 1997); Federal Judicial Center, Planning for the Future: Results of a 1992 Federal Judicial Center Survey of United States Judges (Washington: Federal Judicial Center, 1994)).

5 Emily Bazelon, "With No Sentencing Leeway, What's Left To Judge?," Washington Post, May 4, 2003.

6 Allen Abrahamson, "U.S. Judge to Quit; Cites Sentencing Guidelines," L.A. Times, Sept. 27, 1990, at A3.

7 Lucy Quinlivan, "Chief Judge Leaving Best Job in World," St. Paul Pioneer Press, June 18, 2001, at A1.

8 U.S.S.G. §§2D1.1 and 3B1.2.

9 Statement of Charles Tetzlaff, General Counsel, United States Sentencing Commission, Fairness in Sentencing Act of 2002, Hearing Before the Subcommittee on Crime, Terrorism, and Homeland Security of the Committee on the Judiciary, House of Representatives, May 14, 2002 at 6.

10 Prepared statement of Judge Rosenbaum, submitted in connection with his testimony on H.R. 4689 at 20

11 Id. at 19-20.

12 Id. at 28.

13 Id. at 20.

14 Report on H.R. 4689 at 51.

15 Id. at 12.

16 Id. at 14.

17 Id. at 22.

18 Id. at 28.

19 Id. at 28.

20 Susan Schmidt, "Judge Accused of Misleading House Panel; Republicans on Subcommittee say that Testimony on Drug Sentencing was Inaccurate," Washington Post, November 6, 2002, at A18.

21 Jess Braven & Gary Fields, "House Panel to Probe U.S. Judge: Minnesota Jurist's Records Expected to be Subpoenaed in an Unusual Showdown," The Wall Street Journal, March 12, 2003.

22 Greg Gordon, "Judge Sits in the Middle of Capitol Struggle," Minneapolis Star Tribune, March 15, 2003.

23 "A Judicial Witch Hunt," New York Times, April 30, 2003.

24 Floor Statement re: S. 151 (April 10, 20003).

25 S.151, §401(m)(2)(A).

26 Id. at §401(b)(1).

27 Id. at §401(b)(2)-(5).

28 Id.

29 Id. at §401(d)(2).

30 Id. at §401(h).

31 Id.

32 Id./ at §401(l)(2)(A).

33 Id. at §401(l)(2)(C).

34 Id. at §401(n)(1).

35 Id. at §401(j)(5).

36 Undated letter from Chief Justice Rehnquist to Senator Patrick Leahy, Chairman Senate Judiciary Committee.

37 Dan Christensen, "Stealth Bomber; With Attention Fixed on Iraq, Freshman Florida Congressman Attached Widely Decried Sentencing Rider to Popular Child-Protection Measure," Broward Daily Business Review, April 15, 2003.

38 Id.

39 Id.

40 Luna, "Misguided Guidelines," supra n.3 at 12-13 (citing Mary Pat Flaherty and Joan Biskupic, "Despite Overhaul, Federal Sentencing Still Misfires," Washington Post, Oct. 6, 1996).

41 See H.R. 2213 (May 22, 2003).

42 Remarks of the Chief Justice, Federal Judges Bar Association Board of Directors Meeting, May 5, 2003 at 1.

43 Id. at 2.

44 Id.

45Id.

46 Id. at 3.

June 9, 2003 (4:58PM)

DOUG KELLEY is in private practice in Minneapolis. He served as an Assistant United States Attorney in Minnesota under three U.S. Attorneys, including Jim Rosenbaum.