In 2002, Republicans on a House Judiciary subcommittee trained their sights on an unlikely target: conservative Judge James Rosenbaum, Chief Judge of the US District Court for the Minnesota District. The attack turns out to have been the opening salvo of a coordinated campaign by conservative Republicans, including Attorney General John Ashcroft and House majority leader Tom DeLay, to promote stricter criminal penalties for federal crimes and to consolidate power in the Justice Department’s headquarters at the expense of judges and prosecutors in the field.
Rosenbaum appeared before a subcommittee of the House Judiciary Committee on May 14, 2002. A Reagan appointee with a reputation as a tough sentencer, he nonetheless spoke in favor of a Sentencing Commission proposal to slightly reduce the guideline sentences for low-level drug defendants. Republicans on the subcommittee were pushing legislation that, had it passed, would have overridden the commission. Rosenbaum told the subcommittee that the proposed bill “confuses office boys and assembly-line workers with chairmen of the board.”
A week later he received a letter framed as a discovery request and demanding further information on court cases he had cited. Several months later the subcommittee produced a bound report featuring twenty-two pages of allegations against Judge Rosenbaum. The Judiciary Committee is chaired by Wisconsin Republican F. James Sensenbrenner Jr., perhaps best known for his speech making the House case for the impeachment of President Clinton. The subcommittee’s chief counsel and the muscle on the Rosenbaum matter is former Ken Starr deputy Jay Apperson.
Committee member Robert Scott, a Virginia Democrat, says he hasn’t seen anything like the attack on Rosenbaum in eleven years in Congress. “I don’t see how you can interpret it as anything other than an attempt to intimidate anyone who seeks to testify against a bill supported by the majority on the committee,” says Scott.
The sentencing guidelines, mandated by legislation passed in 1984, have not been popular with judges. Updated guidelines are published annually in a document the size of a small telephone book. They specify a baseline sentence for a given offense and then in excruciating detail provide a formula for adjusting the sentence up or down based on factors like the defendant’s record, “remorse” and degree and nature of involvement. The last step for the judge is to run a finger across a table on the last page, to a column that yields a result, expressed in months. A downward departure is permitted if the judge believes circumstances take the case out of the “heartland” of the offense or, more commonly, if the prosecution requests it in exchange for “substantial assistance,” i.e., snitching. (An Ashcroft directive in September, while it required federal prosecutors to back off on plea bargaining, specifically allowed the substantial-cooperation deals to continue.)
In his testimony, Rosenbaum mentioned the prison time that his examples would have been given according to the guidelines, without noting that the actual sentences they received had been reduced by departures–and on that basis he is accused of misleading the subcommittee. His defenders say his point was that strict guidelines make departures necessary. The committee also dredged up a transcript of a sentencing hearing at which Judge Rosenbaum reduced a defendant’s guideline sentence from ten years and one month to an even ten years, and then told him this sentence was “illegal.” Rosenbaum’s attorney says that was shorthand to explain to an uneducated kid that he was getting a departure and therefore his sentence was subject to prosecution appeal.
A Judiciary Committee source, speaking anonymously, noted that lying to a public official is a crime but added that should not be construed to mean a criminal charge was in the offing. A second possibility is an impeachment attempt, but that could backfire, given the support Rosenbaum has garnered from the media and a wide spectrum of the judiciary, notably Chief Justice William Rehnquist. There’s been no reported movement on the case since this past summer, when a magistrate was dispatched to Minnesota to go over Rosenbaum’s sentencing records going back to 1999.
Initially the subcommittee tried to enlist the General Accounting Office to look into Rosenbaum’s sentencing habits. The GAO balked, replying with the bureaucratic equivalent of “we don’t do witch hunts.” Instead it agreed to study the incidence of departures in federal drug sentences nationwide, with the Eighth Circuit, where Minnesota lies, as a baseline. The findings, released in October, confirmed what everyone knew: that most downward departures were due to prosecutors’ substantial-assistance motions, and they failed to show anything remarkable about departure rates for either the Eighth Circuit or the Minnesota District.
Meanwhile, Apperson had been helping draft the so-called Feeney amendment to the Amber Alert bill, signed into law in April. The amendment contains provisions that weaken a judge’s discretion to depart from the guidelines. Then, in July, conservative Republicans announced the formation of a House Working Group on Judicial Accountability. Its members include DeLay, who proclaimed the working group would “take no prisoners” when it came to abuse of judicial discretion. The campaign gathered more steam in August, when Ashcroft ordered federal attorneys nationwide to report departures to the Justice Department, a directive that Senator Edward Kennedy characterized as enlisting them in “the establishment of a blacklist.” In September, Ashcroft issued his order for prosecutors to curtail plea bargaining and “pursue the most serious, readily provable offenses that are supported by the facts.”
Taken as a whole, the campaign should insure that the spectacular US incarceration rate, the highest in the world, will continue in a healthy growth pattern for the foreseeable future.