[Congressional Record Volume 148, Number 148 (Friday, November 15, 2002)]
[Extensions of Remarks]
[Pages E2070-E2071]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   COMMITTEE REPORT TO H.R. 4689, THE ``FAIRNESS IN SENTENCING ACT''

                                 ______
                                 

                          HON. ROBERT C. SCOTT

                              of virginia

                    in the house of representatives

                      Thursday, November 14, 2002

  Mr. SCOTT. Mr. Speaker, as the Ranking Member of the Crime 
Subcommittee of the Judiciary Committee, I wish to address an aspect of 
H. Rep. 107-769, the Committee Report accompanying H.R. 4689. In that 
report, the Majority unjustifiably impugns the integrity of James M. 
Rosenbaum, a distinguished federal judge and former prosecutor who 
testified before our subcommittee on May 14, 2002.
  Judge Rosenbaum serves as the Chief Judge of the United States 
District Court for the District of Minnesota. Prior to his appointment 
to the bench by President Reagan, he served as the United States 
Attorney for the District of Minnesota. Judge Rosenbaum did not seek to 
testify before Congress. Rather, he was invited to participate in the 
May 14 hearing by Chairman Sensenbrenner at my request.
  At the hearing, Judge Rosenbaum expressed support for an amendment to 
the federal sentencing guidelines that had been transmitted to Congress 
by a unanimous vote of the United States Sentencing Commission, and 
expressed opposition to H.R. 4689, a bill to block that guideline 
amendment. Judge Rosenbaum's position in favor of the amendment is 
shared by, among others, the three Republican members of the Sentencing 
Commission and the Judicial Conference of the United States. Moreover, 
Judge Rosenbaum's position is largely embodied in legislation (section 
202 of S. 1874) introduced last year by Senators Jeff Sessions (R-AL) 
and Orrin Hatch (R-UT).
  The amendment in question would cap the base offense level 
established by the sentencing guidelines for low-level drug defendants 
who are classified as ``minimal'' or ``minor'' participants in the 
offense, as those terms are defined in the guidelines manual. In 
support of that policy, Judge Rosenbaum testified using fact patterns 
taken from actual cases in the District of Minnesota. He never 
testified about the actual sentences imposed; he simply demonstrated 
the differences between the presumptive sentencing range under the 
existing sentencing guidelines, and the presumptive sentencing range 
calculated under the proposed guideline amendment. His analysis was 
primarily based on pre-sentence reports, which describe in detail the 
roles of low-level defendants in actual rather than hypothetical cases.
  The Committee's 22 page critique of Judge Rosenbaum's testimony is 
highly repetitious, but contains four major charges:
  First, the Committee complains that Judge Rosenbaum did not cooperate 
in the Committee staffs attempts to learn more about the examples cited 
by Judge Rosenbaum.
  This criticism is groundless. Judge Rosenbaum responded promptly to 
the Committee's requests and made the resources of his courthouse 
available to committee staff. This was true despite the vexatious 
nature of the Committee's inquiries. Chairman Smith sent four letters 
to Judge Rosenbaum over the three month period following the hearing. 
The first

[[Page E2071]]

letter, worded in the manner of litigation interrogatories, enumerated 
eleven separate categories of information sought by the Committee. One 
follow-up letter, four pages in length and densely footnoted in the 
form of an adversarial brief, posed six separate questions about a 
single case. The practice of propounding follow-up questions to 
congressional witnesses is common, but the intensity with which this 
subcommittee pursued Judge Rosenbaum is unprecedented.
  Second, the Committee claims that Judge Rosenbaum ``misstated`` facts 
by not explaining that several defendants he described were awarded 
downward departures from the guideline range.
  This criticism misunderstands the point of Judge Rosenbaum's 
testimony. In supporting the Sentencing Commission's proposed 
amendment, Judge Rosenbaum faulted the current sentencing guidelines 
that result in unjust sentencing ranges. The fact that judges possess 
statutory authority to ``depart'' from the guidelines in unusual cases 
is an insufficient objection to the proposed guideline amendment, 
because the guidelines themselves should result in a just sentencing 
range for a class of defendants. The fact that at least a half dozen 
drug defendants in a single federal district in a short period of time 
qualified for downward departures demonstrates a flaw in the 
guidelines. Moreover, a departure is subject to appeal while a sentence 
within the guidelines is not.
  In any event, Judge Rosenbaum did not ``misstate'' facts as the 
report alleges. He made amply clear that he was presenting the sentence 
each defendant was ``subject to'' under the existing guidelines--
guidelines which he, the seven members of the Sentencing Commission, 
Senator Sessions and Senator Hatch all believe should be amended.
  Third, the Committee alleges that Judge Rosenbaum testified 
``falsely'' when he stated that low-level drug defendants are sentenced 
``the same way'' as more culpable defendants.
  This is an absurd criticism. Judge Rosenbaum's basic point was that 
the current sentencing guidelines are flawed in that they utilize drug 
quantity to determine the base offense level for all drug trafficking 
defendants, even those who, although legally responsible for an amount 
of drugs, played no role in setting the quantity or sharing in the 
profits. In his prepared statement, Judge Rosenbaum described this 
problem clearly: ``it is the quantity of drugs in the whole scheme that 
drives the sentence. The judge only looks at the defendant, after all 
the scheme's drugs have been accounted for.'' He did not contend that 
minor and major participants receive identical sentences; rather he 
stated that all drug defendants are sentenced ``the same way,'' i.e., 
using the same quantity-driven mechanism.
  The Committee chooses to interpret the judge's words ``the same way'' 
to mean the same sentence. A full reading of his written and oral 
testimony makes clear that is not what Judge Rosenbaum meant. But the 
Committee then uses this misunderstanding to accuse Judge Rosenbaum of 
providing ``unquestionably false,'' ``inaccurate'' and ``utterly 
false'' testimony to Congress. On this innocuous record it is 
inconceivable that any witness, least of all a federal judge, could be 
accused of testifying falsely.
  Fourth, the Committee accuses Judge Rosenbaum of improper motives in 
closing a sentencing hearing and suggests that he may have acted 
``unlawfully.''
  There is no reasonable basis for this grave accusation. The Committee 
says Judge Rosenbaum may have ``unlawfully'' sealed the transcript of a 
sentencing hearing ``to conceal from the public and from the 
Subcommittee'' his actions. By definition, the facts involved in a 
sealed proceeding may not be revealed publicly, and the Committee's 
speculation is irresponsible. But if either the sentence itself or the 
decision to seal the proceeding were illegal, the United States could 
appeal. It has not done so.


                               Conclusion

  By voting in favor of H.R. 4689, a majority of the House Judiciary 
Committee expressed its disagreement with the views of Judge Rosenbaum, 
all seven members of the Sentencing Commission, and Senators Sessions 
and Hatch. That is the Committee's prerogative. It is also the 
Committee's prerogative to rebut the arguments of any witness. However, 
the Committee exceeded the bounds of decency and fairness when it 
published a 22 page diatribe against a distinguished, respected federal 
judge and former United States Attorney.

                          ____________________