Chief Justice William H. Rehnquist
Scolds Congress on Sentencing 

AP 1jan04

[Reuters and NY Times articles below]

WASHINGTON—Congress should have sought the judiciary's advice before limiting the ability of judges to impose lighter sentences than specified in federal guidelines, the nation's top judge says.

"During the last year, it seems that the traditional interchange between the Congress and the Judiciary broke down when Congress enacted what is known as the Protect Act, making some rather dramatic changes to the laws governing the federal sentencing process," Chief Justice William H. Rehnquist wrote Thursday in his annual report on the state of the judiciary.

The changes that Rehnquist objects to were tucked into an anti-crime bill passed by Congress and signed into law by President Bush in April. It targeted child kidnappers, molesters and pornographers and included a national Amber Alert network.

But it also included a provision sponsored by Rep. Tom Feeney, R-Fla., and supported by Attorney General John Ashcroft, that reduced federal judges' discretion in sentencing criminals, and required reports to Congress on any judge who departs from sentencing guidelines.

Collecting this information on judges, Rehnquist said, is "troubling." He said cataloguing such data "could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties."

Other critics say it could lead to a "black list" of judges deemed soft on crime.

In the report, the chief judge lectured Congress on the importance of a strong working relationship between the judicial and legislative branches, and he cited historical examples in which the two arms of government consulted on drafting laws.

He complained that the measure changing judges' sentencing authority was enacted "without any consideration of the views of the judiciary." He added, "It surely improves the legislative process at least to ask the judiciary its views on such a significant piece of legislation."

Mary Cheh, a law professor at George Washington University Law School, said Rehnquist has a legitimate complaint.

Congress adopted "rules and procedures that really are quite unacceptable as far as the judges go because it so restricts their discretion and so straightjackets the process that it really has caused a lot of consternation," she said. The new law means "the sentencing process is even more removed from the judge ... and placed more heavily in the hands of prosecutors."

Prior to the new law, prosecutors had long complained that judges had too much leeway in imposing sentences.

Supporters of the measure argue that it was needed to ensure fair and equal sentencing justice throughout the judiciary. House Judiciary Chairman James Sensenbrenner, R-Wis., said too often judges were handing down sentences less than those specified in federal guidelines.

"The Feeney amendment seeks to correct these sentencing disparities so that one person doesn't receive a sentence three times as long as another person committing the same crime," Sensenbrenner said in a statement responding to Rehnquist's report.

The Judicial Conference of the United States -- a 27-judge body that sets policy for federal trial judges, appeals judges and others -- voted in September to support overturning the law.

Sens. Edward Kennedy, D-Mass., Patrick Leahy, D-Vt., and other Democrats have introduced legislation that would nullify the Feeney amendment.

Calls to Feeney's offices in Washington and Florida were not returned Wednesday.

Supreme Court: http://www.supremecourtus.gov

Chief Justice Blasts Congress on Sentencing 

REUTERS 1jan04

WASHINGTON—U.S. Supreme Court Justice William Rehnquist on Thursday lashed out at Congress for not seeking input from the judiciary before it approved a law aimed at forcing judges to follow tougher sentencing guidelines.

"During the last year, it seems that the traditional interchange between the Congress and the judiciary broke down when Congress enacted what is known as the PROTECT Act, making some rather dramatic changes to the laws governing the federal sentencing process," Rehnquist said in his 2003 Year-End Report on the Federal Judiciary.

Rehnquist, who heads a group of 27 judges that in September called for a repeal of the law, spent much of his annual report criticizing lawmakers for approving legislation that severely limits the ability of judges to hand down lighter sentences than what the federal sentencing guidelines call for.

Though he noted that it was Congress' prerogative to determine what to consider when approving new laws, Rehnquist said it would have improved the legislative process to at least ask the judiciary its views.

Rep. James Sensenbrenner, a Wisconsin Republican who heads the Judiciary Committee in the House of Representatives, said lawmakers had received input from federal judges as they were considering the draft legislation.

"This disagreement resulted from a policy dispute between Congress and the judiciary and did not result from any breakdown in communications between the branches or a lack of opportunity for judges to express their thoughts on this issue," Sensenbrenner said in a statement.

The judiciary has been mired in a battle with Congress and the Justice Department to keep its independence and allow judges to retain flexibility in sentencing.

In April, Congress adopted the law aimed at forcing judges to follow stricter sentencing guidelines. The Justice Department was charged with creating a plan to enforce the rules.

As a result, Attorney General John Ashcroft directed federal prosecutors to report on judges who issue lighter sentences than what is recommended by the guidelines.

Rehnquist said he was particularly troubled by that requirement, since it collects information on an individual judge-by-judge basis.

He said if Congress begins to question a judge's decisions, it could appear to be "an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties."

Chief Justice Attacks a Law as Infringing on Judges 

LINDA GREENHOUSE / NY Times 1jan04

WASHINGTON, Dec. 31 — Chief Justice William H. Rehnquist criticized Congress in unusually pointed terms on 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, Representative F. James Sensenbrenner Jr., Republican of Wisconsin, issued a statement on Wednesday defending the legislation and responding to the chief justice's criticism. Mr. Sensenbrenner 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."

Mr. Sensenbrenner said Congress was aware of the judiciary's opposition when it adopted the amendment.

"This disagreement," he said, "resulted from a policy dispute between Congress and the judiciary and did not result from any breakdown in communication between the branches or a lack of opportunity for judges to express their thoughts on this issue."

Nonetheless, it is clear that Congress is not of one mind on the question. Senator Edward M. Kennedy of Massachusetts, a leading Democrat on 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." Mr. Kennedy said he had introduced a bill to repeal the amendment.

The measure at issue is known as the Feeney Amendment, for its sponsor, Representative Tom Feeney, Republican of Florida. It instructed the United States 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.

In one sense, given the Judicial Conference's official opposition to the Feeney Amendment, Chief Justice Rehnquist's critical remarks did little more than reflect existing judicial policy. The Judicial Conference's action itself reflected the views of many federal judges, who have become increasingly resentful of the limits — mandatory minimum sentences in some cases, in addition to the guidelines — that have been placed on their traditional sentencing discretion.

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. He has long been concerned about guarding judicial independence, and it was in those terms that he framed his critique of the Feeney Amendment.

The chief justice said that "by constitutional design," judges had "an institutional commitment to the independent administration of justice and are able to see the consequences of judicial reform proposals that legislative sponsors may not be in a position to see."

He suggested that while "judges are bound to respect" the Congressional perspective on questions of judicial administration, the respect should run in both directions.

"Consultation with the judiciary," he said, "will improve both the process and the product."

Biographical Data

Birth, Residence, and Family 
Born October 1, 1924, in Milwaukee, Wisconsin, the son of William Benjamin Rehnquist and Margery Peck Rehnquist. Married Natalie Cornell of San Diego, California; Children: James, born 1955, Janet, born 1957; Nancy, born 1959. The family are members of Emmanuel Lutheran Church, Bethesda, Maryland. 

Education 
Attended public elementary and high schools in Shorewood, Wisconsin, a suburb of Milwaukee. Stanford University, B.A., M.A. 1948; Phi Beta Kappa; Harvard University, M.A., 1950; Stanford University, LL.B., 1952; Order of the Coif. 

Law Clerkship 
Clerk to Justice Robert H. Jackson, Supreme Court of the United States, February 1952-June 1953. 

Law Practice 
Private practice of law, Phoenix, Arizona, 1953-1969. Engaged in a general practice of law with primary emphasis on civil litigation. 
Government Service 
Served in the United States Army Air Corps in this country and overseas from 1943 to 1946. Discharged with the rank of sergeant. Appointed Assistant Attorney General, Office of Legal Counsel, by President Nixon in January 1969. 

Judicial Offices 
Nominated Associate Justice of the Supreme Court of the United States by President Nixon on October 21, 1971; sworn in on January 7, 1972. 
Nominated Chief Justice of the United States by President Reagan on June 17, 1986; sworn in on September 26, 1986. 

Other Activities 
Active in professional, civic, and church affairs while living in Phoenix. Contributor of articles on legal subjects to various periodicals. 

source: http://supct.law.cornell.edu/supct/justices/rehnquist.bio.html 1jan03