Ashcroft the Avenger

Two Minnesota judges return fire at the justice department

Last week's flap over CBS pulling the plug on The Reagans produced two decidedly different trips down memory lane. Conservatives remembered a great leader who brought down an evil regime with one rhetorical flourish and magically ended the Cold War. Liberals recalled with horror a zealot who once wondered if AIDS wasn't moralistic payback for the sins committed by homosexuals. And so on.

But centrists have been pining lately for another defining moment of the Reagan administration, when Congress created the U.S. sentencing commission. In 1984, Goldwater Republicans and Great Society Democrats came together for perhaps one last time to establish sentencing guidelines for federal crimes across the country. Though not without controversy, what became known as "mandatory minimums" were heralded in some circles for eradicating disparate sentencing. In those days, getting busted with a few grams of coke might get you three years in Minneapolis, but about two minutes in Miami.

The stricter guidelines, which took effect in 1987, were criticized as far too harsh for nonviolent offenders. But they still provided some wiggle room for judges who saw mitigating factors in a particular case. For years, even as the executive branch's War on Drugs raged on, appointed federal jurists in 12 U.S. court districts felt free to hand down decisions that sometimes didn't jibe with guidelines. If prosecutors felt any judge's decision did not adhere, the case could be taken to the U.S. Court of Appeals.

But those were the good old days. Now the autonomy of federal judges is all but gone. Last year, the sentencing commission expanded the maximum sentence for people with relatively minor roles in drug busts large enough to generate federal indictments. Then, in April, Congress passed a law requiring that any "downward departure" sentence given by a judge be reported to Congress and reviewed by an appeals court. In other words, federal judges who deviate from maximum sentences are being called out.

The further shrinkage of judicial discretion has caused federal judges across the country to squirm. "If the point is to have federal judges intimidated, it's worked," says Joe Friedberg, who has been a defense attorney in Minneapolis for 38 years. "It's been absolutely chilling."

The charge has been led by U.S Attorney General John Ashcroft, who has repeatedly slavered for maximum sentences. Ashcroft's tough talk makes for splendid politics--no one is going to say courts need to go easier on drug dealers--and continues to be a rallying point for the law-and-order right. But, critics claim, Ashcroft's zealotry is a clear case of one government branch overstepping another. The attorney general, as a presidential appointee, is a member of the executive branch. (The law Congress passed regarding downward departures started as a directive from Ashcroft's office.)

"This is a guy who is supposedly against big government, in favor of federal restraint," Friedberg notes. "He's a raging hypocrite."

 

Two Minnesota judges in the U.S. Eighth District court, Paul Magnuson and James Rosenbaum, have been dragged into the controversy. For the past 18 months, the two veteran judges have become symbolic in conservative circles for a court system that is soft on crime. But supporters of the judges, and there are many, say that's a blatant smear tactic. (Both judges declined to comment.)

Rosenbaum's troubles began in May 2002, when he was asked to appear before the House Judiciary subcommittee in Washington. In his testimony, Rosenbaum noted that sentencing guidelines were punishing "minnows" in the drug trade, when the Justice Department really should be going after "the sharks, the major players."

Rosenbaum was widely praised for his candor at the time, but by October last year, GOP members of the House had reviewed Rosenbaum's comments and found that he had neglected to note some cases where he had imposed lighter sentences. Rep. Lamar Smith, a Texas Republican, said he was "extremely troubled" by Rosenbaum's testimony, and a report filed by the subcommittee accused Rosenbaum of being dishonest. (See "Stupid Sentencing Tricks," City Pages, 5/7/03.)

"He walked into a pissing match and got pissed on," says one attorney who supports Rosenbaum.

Suddenly Rosenbaum's testimony was being used in a political tug-of-war, and eventually led to the passage of the required reporting law, which was tucked into the Amber Alert bill as an amendment.

Then, last month, Magnuson stepped into the fray, criticizing the new law and Ashcroft in a statement summarizing a recent case where he was loath to grant a lighter sentence for fear of being reported to lawmakers. "The Court believes that the day of the downward departure is past," Magnuson wrote. "Congress and the Attorney General have instituted policies designed to intimidate and threaten judges into refusing to depart downward, and those policies are working."

Magnuson concluded, "This reporting system accomplishes its goal: The court is intimidated, and the Court is scared to depart."

What's surprising to many is that Magnuson, the state's former chief judge, and Rosenbaum, appointed in 1985 by Ronald Reagan, have reputations for being tough judges. "I don't think any of my clients are sitting in prison thinking he's a liberal," Friedberg says of Rosenbaum.

In fact, statistics from the sentencing commission's 2001 report show that Magnuson and Rosenbaum, along with their colleagues around the state, are right in line with national averages. Criminals were sentenced within guidelines 61 percent of the time in Minnesota, compared to 64 percent nationally. And the number of downward departures sentenced in the state without plea bargains was 73 that year, which matches the national average. Further, Friedberg notes, states like Arizona, New Mexico, and California have much higher rates of lighter sentences.

So why target Rosenbaum? Friedberg says it's because Rosenbaum was "courageous" enough to speak out in the first place: "He made the mistake of believing the judiciary committee was actually interested in what he had to say."

It's a sentiment echoed by Victoria Toensing, Rosenbaum's attorney, who notes that besides Magnuson and Rosenbaum, only one other judge, in New York, has criticized what amounts to an abuse of power. That judge did so after he had left the bench. "This is being done by political people with axes to grind," says Toensing. "Congress ought to stay out of criminal cases. This is about the integrity of the branches."

(It's worth noting, however, that it's also about the taxpayers. With rising inmate populations, Ashcroft's movement all but ensures the federal government will spend more on its correctional facilities, sending the national budget further into debt.)

Toensing, who calls herself a "Libertarian Republican," was actually involved in the drafting of the original guidelines in 1984, when she was deputy chief of the Justice Department's criminal division. "These were supposed to be guidelines," she recalls. "These were not cement."

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