I have a piece in today’s L.A. Times on the latest controversy; here’s a slightly changed version of that piece:
Congress wants to know how federal judges are applying the law. It tells the Justice Department to provide certain reports. Unconstitutional!, federal district judge Dickran Tevrizian held earlier this month. The attempt by Congress to learn about judges’ behavior, and perhaps to eventually publicize and criticize this behavior, “is a power grab by one branch of government over another branch.”
There surely is a power grab going on here, but it’s in the other direction. A judge is trying to stifle information to protect judges from criticism.
Some background: Federal judges sentence defendants using the Sentencing Guidelines — a complex set of rules promulgated by the U.S. Sentencing Commission, under general guidance from Congress. Judges may “depart” from the Guidelines, either downward by giving a lower sentence or upward with a higher sentence. They are only supposed to depart, though, in exceptional cases.
Many judges don’t like the Guidelines, partly because they think the Guidelines provide too little room for individualized judgment. But there’s no constitutional right to individualized decisionmaking in sentencing. Congress could set up fixed rules, such as “five years for an armed robbery.” These would be clear and evenhanded, but they might not be sensitive enough to the particulars of each defendant or each crime.
Congress could set up rules that leave judges great discretion, such as “one to fifty years for an armed robbery, whatever a judge decides.” This would let judges take many factors into account, but it might lead to huge disparities in sentences, as some defendants draw lenient judges and others draw harsh ones; and it might also let judges consider improper factors. Or Congress could set up some intermediate rules, such as those expressed in the Guidelines.
Judge Tevrazian’s decision doesn’t challenge the Guidelines, or the restrictions on departures. But it does condemn a recent statutory provision (section 401(l) of the so-called “PROTECT Act”) which requires the Justice Department to report to Congress about cases in which judges departed downward. The report must, among other things, give the facts of the case, name the judge, and explain the judge’s reasons for the departure.
The decision begins with a long discussion of judicial independence. “Regardless of the individual approach of a judge,” the judge writes, “the integrity and the fairness of the legal system will always be diminished when unwarranted interference distracts the individual judge from his or her charge to adjudicate solely based on the Rule of Law.”
Then, however, we get a sense of how broadly he defines “unwarranted interference”: “Despite the seemingly self-evident need for judicial independence, a recent upsurge in attacks upon both the individual judge and the entire judiciary has illustrated that the general public is largely uninformed and often ungrateful of the service provided by the court.” Ungratefulness for the courts’ services — shocking!
And then the clincher: “The judiciary must provide a defense against attempts to usurp judicial independence through inappropriate controls and the dissemination of information that fosters distrust, misunderstanding, and apathy towards the function of the court.” I had thought that “dissemination of information” about judges was everyone’s right, including the Congress’s. But apparently not.
The Judge then goes on to hold section 401(l) unconstitutional. “There is no legitimate purpose served by reporting individual judges[‘] performance to Congress.” It’s a “power grab,” and “an unwarranted interference with Judicial independence and a clear violation of the separation of powers.” Presumably the report is the sort of information that the judge condemned as fostering “distrust, misunderstanding, and apathy.”
But actually Congress has ample “legitimate purpose” for this information. If Congress finds that some judges depart much more than others, that could be a signal that defendants’ fates still depend too much on which judge they draw. Congress might then decide to revise the Guidelines, perhaps by limiting downward departures.
Or if Congress finds that some especially respected judges are departing often, that could be a signal that the sentencing ranges are too high and should be lowered. Congress is supposed to legislate based on knowledge about how the current law is being applied, not based on ignorance.
Of course, Congress could also use the report as a basis for publicly criticizing judges. But while such criticism may sometimes be unsavory or opportunistic, it too is perfectly legitimate in our democracy. Judges have no constitutional right to be free from criticism, by the citizens or by legislators. Judges are government officials, too. We, and our representatives, are entitled to publicly express our views about their performance — and to have the information needed to express those views.
What about the risk that the criticism might make some judges feel pressured not to depart downward? Well, that’s why we appoint judges for life, and try to choose judges who are strong and courageous. No judge needs to fear being arrested for a “wrong decision.” Judging by the last 200 years of American history, judges need not even fear being impeached for their decisions. They may fear that they won’t be elevated to a higher court — but Congress and the President are entitled to know a judge’s record when deciding whether to elevate him.
If judges really think their decisions are right, they should be able to withstand some criticism. And if the criticism persuades them that their decisions were wrong, that may improve their decisionmaking in the future.
Nor is there reason to worry about interference with “the Rule of Law.” Judges make at least three kinds of decisions. Sometimes they decide about the facts — who did what to whom. Sometimes they apply, interpret, or evaluate a law, deciding what a statute means, or whether a statute is constitutional. Sometimes, though, they apply their own moral judgment about what’s a fair sentence in a particular case; that’s what downward departures are all about.
Such sentencing discretion has little to do with “the Rule of Law.” It isn’t objective, impartial factfinding, or application of legal principles to interpret legal language. Rather, it’s the rule of each judge’s personal conscience. Congress could give judges’ conscience free rein in sentencing. It can take away the judges’ discretion entirely. Or it could leave judges with some discretion, while remaining free to comment on the ways the judges exercise that discretion.
No government official is constitutionally immune from criticism. Congress has every right to learn what other government officials are doing, and to express its views about their actions. And we should be concerned whenever a government official — even a respected federal judge — tries to suppress such criticism.
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