[Congressional Record Volume 149, Number 100 (Wednesday, July 9, 2003)]
[Senate]
[Pages S9115-S9116]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
JUDGES ACT
Mr. LEAHY. Mr President, earlier this year, the House Republicans
saddled the bipartisan, non-controversial AMBER Alert bill with
numerous unrelated and ill-conceived provisions, collectively known as
the ``Feeney amendment,'' that effectively overturned the basic
structure of the carefully crafted sentencing guideline system. At the
time, we were warned by distinguished jurists that these provisions
would irrevocably harm our sentencing system and compromise justice.
For example, the Nation's Chief Justice warned that the Feeney
amendment, if enacted, ``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.'' Despite
such objections, and without any serious process in the House or
Senate, these provisions were pushed through conference with minor
changes and enacted.
We are now beginning to witness the far-reaching impact of this
folly. Not only have we compromised the sentencing system, but we have
alienated and minimized the effectiveness of our Federal judges,
prompting at least one to announce early retirement.
As enacted, the Feeney amendment, substantially reversed provisions
allowing Federal judges to depart from sentencing guidelines when
justice requires. It also created a ``black list'' of judges who impose
sentences that the Justice Department does not like, and limited the
number of Federal judges who can serve on the Sentencing Commission,
thus reducing the influence of practical judicial experience on
sentencing decisions.
In response, in a June 24 op-ed in the New York Times, Republican-
appointed district judge and former Federal prosecutor, John S. Martin,
Jr., decried these provisions as ``an assault on judicial
independence,'' ``at odds with the sentencing philosophy that has been
a hallmark of the American system of justice,'' and tragically, the
impetus for his decision to retire from the bench, rather than exercise
his option to continue in a lifetime position with a reduced workload.
``When I took my oath of office 13 years ago I never thought I would
leave the Federal bench. . . . I no longer want to be part of our
unjust criminal justice system.''
It is shameful that we have allowed such half-baked, poorly-crafted
legislation to lead to the loss of a judge that has dedicated his
career to fighting crime and preserving justice. When he was appointed
by the first President Bush in 1990, Judge Martin brought with him to
the bench years of knowledge and experience as a Federal prosecutor,
including 3 years as a U.S. Attorney for the Southern District of New
York. As a former Federal prosecutor, he is no slouch on crime. He
knows very well the importance of vigorously pursuing and punishing
wrong-doers. But his experience has also taught him that these goals
cannot trounce the equally-critical pursuit of justice and fairness.
Unless we reverse the damaging provisions in the Feeney amendment, we
will continue to compromise justice, alienate Federal judges, and
threaten the stability and integrity of our judicial system. That is
why I joined Senators Kennedy, Feingold, and Lautenberg in introducing
the Judicial Use of Discretion to Guarantee Equity in Sentencing Act of
2003, or the JUDGES Act. This bill would correct the Feeney amendment's
far-reaching provisions by restoring judicial discretion and allowing
judges to impose just and responsible sentences. In addition, the
JUDGES Act would reverse the provisions limiting the number of Federal
judges who can serve on the Sentencing Commission. Finally, the JUDGES
Act would follow through on the advice of Chief Justice Rehnquist to
engage in a ``thorough and dispassionate inquiry'' on the Federal
sentencing structure by directing the Sentencing Commission to conduct
a comprehensive study on sentencing departures and report to Congress
with 180 days.
In his New York Times op-ed, Judge Martin raised another important
point: Limiting judicial discretion and involvement in sentencing
practices also reduces the personal satisfaction that judges derive
from knowing that they are integrally involved in promoting a more just
society, and in doing so removes a powerful incentive that prompts
potential judges to accept a judicial appointment, despite inadequate
pay. ``When I became a Federal judge, I accepted the fact that I would
be paid much less than I could earn in private practice. . . . I
believed I would be compensated by the satisfaction of serving the
public good--the administration of justice. In recent years, however,
this sense has been replaced by the distress I feel at being part of a
sentencing system that is unnecessarily cruel and rigid.''
We all know that judicial pay is a challenging issue. Indeed, this is
why I introduced a bill, S. 787, to restore the many cost of living
adjustments that Congress has failed to provide the judiciary, and have
joined Chairman Hatch and many other members of the Judiciary Committee
in sponsoring S. 1023 to increase the annual salaries of Federal judges
and justices. I encourage my colleagues to support these efforts. But I
ask them not to make the challenge of judicial pay worse by taking away
the intangible compensation that is the satisfaction from serving the
public good. Unfortunately, the Feeney amendment has done just that.
I again urge my colleagues to support the JUDGES Act, and I ask
unanimous consent that Judge Martin's June 24 op-ed be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, June 24, 2003]
Let Judges Do Their Jobs
(By John S. Martin Jr.)
I have served as a federal judge for 13 years. Having
reached retirement age, I now have the option of continuing
to be a judge for the rest of my life, with a reduced
workload, or returning to private practice. Although I find
my work to be interesting and challenging, I have decided to
join the growing number of federal judges who retire to join
the private sector.
When I became a federal judge, I accepted the fact that I
would be paid much less than I could earn in private
practice; judges make less than second-year associates at
many law firms, and substantially less than a senior Major
League umpire. I believed I would be compensated by the
satisfaction of serving the public good--the administration
of justice. In recent years, however, this sense has been
replaced by the distress I feel at being part of a sentencing
system that is unnecessarily cruel and rigid.
For most of our history, our system of justice operated on
the premise that justice in sentencing is best achieved by
having a sentence imposed by a judge who, fully informed
about the offense and the offender, has discretion to impose
a sentence within the statutory limits. Although most judges
and legal
[[Page S9116]]
scholars recognize the need for discretion in sentencing,
Congress has continually tried to limit it, initially through
the adoption of mandatory-minimum sentencing laws.
Congress's distrust of judicial discretion led to the
adoption in 1984 of the Sentencing Reform Act, which created
the United States Sentencing Commission. The commission was
created on the premise, not unreasonable, that uniformity in
sentencing nationwide could be promoted if judges and other
criminal law experts provided guidelines for federal judges
to follow in imposing sentences. However, Congress has tried
to micromanage the work of the commission and has undermined
its efforts to provide judges with some discretion in
sentencing or to ameliorate excessively harsh terms.
For example, when an extensive study demonstrated that
there was no justification for treating crack cocaine as 100
times more dangerous than powdered cocaine, the ratio adopted
by Congress in fixing mandatory minimum sentences, the
commission proposed reducing the guideline ratios. However,
the proposal was withdrawn when Congressional leaders made it
clear that Congress would overrule it.
Congress's most recent assault on judicial independence is
found in amendments that were tacked onto the Amber Alert
bill, which President Bush signed into law on April 30. These
amendments are an effort to intimidate judges to follow
sentencing guidelines.
From the outset, the sentencing commission recognized the
need to avoid too rigid an application of the guideline
system and provided that judges would have the power to
adjust sentences when circumstances in an individual case
warranted. The recent amendments require the commission to
amend the guidelines to reduce such adjustments and require
that every one be reported to Congress. They also require
that departures by district judges be reviewed by the
appellate courts with little deference to the sentencing
judge.
Congress's disdain for the judiciary is further manifested
in a provision that changes the requirement that ``at least
three'' of the seven members of the sentencing commission be
federal judges to a restriction that ``no more than'' three
judges may serve on it. Apparently Congress believes
America's sentencing system will be jeopardized if more than
three members of the commission have actual experience in
imposing sentences.
Every sentence imposed affects a human life and, in most
cases, the lives of several innocent family members who
suffer as a result of a defendant's incarceration. For a
judge to be deprived of the ability to consider all of the
factors that go into formulating a just sentence is
completely at odds with the sentencing philosophy that has
been a hallmark of the American system of justice.
When I took my oath of office 13 years ago I never thought
that I would leave the federal bench. While I might have
stayed on despite the inadequate pay, I no longer want to be
part of our unjust criminal justice system.
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