Sentencing from the halls of Congress
In response to AG Gonzales’ recent call for minimum guidelines, one thoughtful editorial suggested that if certain members of Congress are truly concerned about “judges legislating from the bench,” then perhaps lawmakers should stop trying “to sentence convicts from the halls of Congress.” But, as detailed in this fascinating front page article in today’s Chicago Tribune, House Judiciary Committee Chair James Sensenbrenner and congressional counsel Jay Apperson apparently believe they should oversee sentencing outcomes from the halls of Congress.
The full Tribune article is a must-read, not only for those interested in sentencing law and policy, but also for anyone concerned about inter-branch relations in the federal system. Here are snippets:
In an extraordinary move, the chairman of the House Judiciary Committee privately demanded last month that the 7th U.S. Circuit Court of Appeals in Chicago change its decision in a narcotics case because he didn’t believe a drug courier got a harsh enough prison term.
Rep. James Sensenbrenner (R-Wis.), in a five-page letter dated June 23 to Chief Judge Joel Flaum, asserted that a June 16 decision by a three-judge appeals court panel was wrong. He demanded “a prompt response” as to what steps Flaum would take “to rectify the panel’s actions” in a case where a drug courier in a Chicago police corruption case received a 97-month prison sentence instead of the at least 120 months required by a drug-conspiracy statute….
Flaum declined comment on the situation, saying he does not publicly discuss matters pending before the court. He sent a letter back to Sensenbrenner saying it was inappropriate to comment on a pending case. But the panel amended its ruling to cite a Supreme Court case that showed Sensenbrenner was wrong.
[Jay] Apperson, who is chief counsel of a House Judiciary subcommittee, argues that Sensenbrenner is simply exercising his judicial oversight responsibilities. But some legal experts believe the action by the Judiciary Committee chairman, who is an attorney, is a violation of House ethics rules, which prohibit communicating privately with judges on legal matters, as well as court rules that bar such contact with judges without contacting all parties. Further, the letter may be an intrusion on the Constitution’s separation-of-powers doctrine, or, at least, the latest encroachment by Congress upon the judiciary, analysts said.
The case at issue in this latest sparring between a member of Congress and the judiciary is United States v. Lissett Rivera, No. 02-3238 (7th Cir. June 16, 2005), amended (June 28, 2005) (available here). The Rivera decision, which was authored by Judge Frank Easterbrook, involves a procedurally complicated discussion of the guidelines and mandatory minimums (additional discussion of the Rivera case can be found over at the Seventh Circuit Blog in this post).
As the Tribune article explains, the ruckus has arisen in large part because the government in Rivera failed to appeal the district court’s failure to impose a 10-year mandatory minimum sentence (although, as Peter G. notes in the comments to this post, that minimum perhaps was rightly not applied, despite the Seventh Circuit’s statement to the contrary). According to the article, “Sensenbrenner also wrote a letter to Atty. Gen. Alberto Gonzales, demanding that the decision be appealed further and that he investigate why the U.S. attorney’s office in Chicago did not appeal Rivera’s sentence. Bryan Sierra, a spokesman for the Justice Department, said Sensenbrenner’s letter was being reviewed.”