Letter responding to my op-ed on judges and Congress: Mark Allenbaugh writes this letter to the L.A. Times:

The eponymous premise of Prof. Eugene Volokh’s “Congress Has Every Right to Judge the Judges,” Feb. 8, 2004, at M3, is quite surprising, especially coming from a constitutional law professor. While Congress certainly does have a right “to know what judges are doing,” it is not the province of Congress to interfere with how federal judges do their jobs. As Justice Marshall declared 201 years ago in Marbury v. Madison, it is “emphatically the province and duty of the judicial department to say what the law is.” By reducing and in some cases eliminating judicial sentencing discretion, Congress has simultaneously allotted more sentencing power to prosecutors. It is this power grab that Judge Tevrizian, a Reagan appointee, found to be an unconstitutional violation of the separation of powers doctrine.

Actually, Judge Tevrizian did not strike down Congress’s “reducing and in some cases eliminating judicial sentencing discretion.” In fact, Judge Tevrizian specifically rejected these challenges, noting that the Supreme Court has held that “the scope of judicial discretion with respect to a sentence is subject to congressional control”; for instance, Congress “may limit the exercise of [sentencing] discretion through legislatively adopted guidelines,” and “may establish mandatory minimum sentences” (which would include minimums beneath which there may not be any downward departures). These are all quotes from p. 9 of the opinion. The writer continues:

It therefore is disingenuous of Prof. Volokh to suggest that federal judges, in their virtually unanimous opposition to the legislation, somehow desire “to be free from criticism.” Sentences, after all, have always been public affairs and subject to appellate review. Furthermore, the U.S. Sentencing Commission has collected and disseminated data to Congress on federal sentences for nearly 15 years. Judges always have been subject to public criticism (or adulation) for the sentences they impose.

Well, here’s an excerpt from p. 6 of the judge’s opinion:

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. 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. . . . Both individual federal and state judges have increasingly been the targets of “vitriolic ad hominem attacks” for their individual decisions in individual cases. . . .

It sounds as if the judge is complaining about criticism (“attacks,” ingratitude, “dissemination of information”), albeit criticism that he thinks is unfair.

     The opinion goes on to say that “[i]t is against this background and the principles of judicial review that the present motion must be decided” (p. 7). And several pages later, in rendering the decision, the judge indeed writes that the reporting requirement “chills and stifles judicial independence to the extent that it is constitutionally prohibited” (p. 12); presumably the chill and stifling comes from the threat of criticism, since that’s the chief likely use to which Congress would put the report. “There is no legitimate purpose served by reporting individual judges'[] performance to Congress” (p. 12); I take it that this means the facilitation of Congressional criticism of judges’ positions (as well as other possible uses for the information) is not a “legitimate purpose” for the report. So the striking down of the reporting provision seems to me triggered precisely by the judge’s desire to be free from criticism, albeit criticism that the judge thinks is ungrateful, uninformed, distrustful, based on misunderstanding, ad hominem, or vitriolic.

     The letter writer continues:

In any event, while “Congress is supposed to legislate based on knowledge about how the current law is being applied, not based on ignorance” it hardly did that when it passed the PROTECT Act. Rather than getting any input from the federal judiciary, or holding any meaningful public debate, it simply passed knee-jerk tough-on-crime legislation. Furthermore, the premise of a portion of the PROTECT Act — that federal judges were departing too often below the sentencing guidelines — has since been discredited by at least two independent reports: one by the U.S. Sentencing Commission, and another by the GAO.

By usurping judicial sentencing discretion, in the words of Prof. Volokh, judges no longer will be able to “use their moral and practical judgment to select a fair sentence.” The current debate between Congress and the federal Judiciary thus is not about judges’ fear of being judged; rather, it is about who ought to do the judging.

Mark H. Allenbaugh is a former staff attorney with the U.S. Sentencing Commission and currently serves as the Co-Chair of the Federal Sentencing Guidelines Committee for the National Association of Criminal Defense Lawyers. He is a co-editor of “Sentencing, Sanctions and Corrections: Federal and State Law, Policy and Practice.”

     A few quick thoughts:

     (1) Whether the PROTECT Act was passed with or without input from the federal judiciary, whether it was passed after meaningful debate, and whether it’s knee-jerk, though-on-crime legislation are not relevant, I think, to whether it’s unconstitutional.

     (2) Whether federal judges are departing “too often” is naturally a value judgment, so I’m not sure quite how firmly it can be “discredited,” especially if the concern is that some judges are departing unsoundly. Presumably, though, if all judges are departing only rarely and only in proper circumstances, the very reports mandated by sec. 401(l) would just further illustrate the point.

     (3) The constitutional debate between Congress and the judges is not “about who ought to do the judging.” The judges agree that Congress has the right to set guidelines, either rigid or flexible ones; there’s no unconstitutional “usurp[ation] of judicial sentencing discretion” here, since setting sentences and sentencing rules is within Congress’s constitutional power. Likewise, Congress agrees that of course the sentence in each particular case will be set by the judges (though constrained by the Congressional framework).

     As I mentioned above, Judge Tevrizian’s decision didn’t even try to reallocate “who ought to do the judging.” Rather, the only provision that the decision struck down was a provision that facilitated Congressional evaluation of the job that judges are doing. I wouldn’t say this has to do with judicial fear of being judged; but it sure seems like it’s based on judicial dislike of being judged.