[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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