Pubdate: Thu, 1 Jan 2004 Source: San Jose Mercury News (CA) Copyright: 2004 San Jose Mercury News Contact: http://www.bayarea.com/mld/mercurynews Details: http://www.mapinc.org/media/390 Author: Linda Greenhouse, New York Times Note: From MAP. The law discussed below is designed to pressure federal jusges who make decisions like that in the Ed Rosenthal case. More: on this topic at http://www.mapinc.org/topics/Amber+Alert Bookmark: http://www.mapinc.org/find?199 (Mandatory Minimum Sentencing) CHIEF JUSTICE CRITICIZES OBSCURE LAW WASHINGTON - Chief Justice William Rehnquist criticized Congress in unusually pointed terms Wednesday for a recent law that places federal judges under special scrutiny for sentences that fall short of those called for by the federal sentencing guidelines. The legislation, enacted last spring as a little-noticed amendment to the popular Amber Alert child protection measure, "could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties," the chief justice said in his annual year-end report on the federal judiciary. "It seems that the traditional interchange between the Congress and the judiciary broke down" when the amendment passed without any formal evaluation from the judiciary, he added. At its most recent meeting, in September, the Judicial Conference of the United States, a group of 27 judges who make policy for the federal courts, voted unanimously to ask Congress to repeal the amendment. Congress has not acted on the request from the conference, which the chief justice heads, and the prospect that it will do so appears slight. The chairman of the House Judiciary Committee, Rep. James Sensenbrenner, R-Wis., issued a statement Wednesday defending the legislation and responding to the chief justice's criticism. He said it had been necessary for Congress to act because the "growing problem of downward departures" -- the term for sentences that fall below the minimum produced by the guidelines -- had been "undermining sentencing fairness throughout the federal system." Sensenbrenner said Congress was aware of the judiciary's opposition when it adopted the amendment. Nonetheless, it is clear that Congress is not of one mind on the question. Sen. Edward Kennedy, D-Mass., a leading member of the Senate Judiciary Committee, called the chief justice's criticism "extraordinary" and said he agreed that the amendment was undermining judicial independence, by creating "blacklists based on the sentencing practices of individual federal judges." Kennedy said he had introduced a bill to repeal the amendment, which he described as a "serious mistake" that had been enacted "without hearings or meaningful debate." The measure at issue is known as the Feeney Amendment, for its sponsor, Rep. Tom Feeney, R-Fla. It instructed the U.S. Sentencing Commission, the agency that sets the guidelines, to issue new rules to "ensure that the incidence of downward departures is substantially reduced." The commission was ordered to maintain judge-by-judge records of sentencing departures and to send the files to the attorney general, who in turn is obliged to provide the information to the judiciary committees of both houses. Downward departures occur in about 35 percent of all federal sentences. But the Judicial Conference said in September that the statistic was misleading because most of those sentences were imposed as part of "fast track" proceedings for immigration and drug cases in federal judicial districts along the Mexican border and were supported by federal prosecutors. In one sense, given the Judicial Conference's official opposition to the Feeney Amendment, Rehnquist's critical remarks did little more than reflect existing judicial policy. But the chief justice's choice of subject for his year-end statement - -- this was his 18th -- is never casual, and by making the sentencing debate the focus of the report, he was clearly trying to raise the issue's public visibility and bring it more forcefully than before to the attention of Washington policy-makers. - --- MAP posted-by: Richard Lake