Stupid Sentencing Tricks

Not so long ago, the rap on U.S. District Court Judge James Rosenbaum was that he was a pretty conservative guy. A former U.S. prosecutor, he campaigned for Sen. Rudy Boschwitz. In 1985, the Republican senator nominated him to the federal bench; Ronald Reagan appointed him. He enjoys a decades-long friendship with Rep. Jim Ramstad, another law-and-order Minnesota Republican. Thanks to his record, a year and a half ago he was appointed chief judge for the District of Minnesota.


But these days Rosenbaum bears a surprising resemblance to a left-wing scriptwriter trying to survive the McCarthy era. A year ago, the 58-year-old jurist told the U.S. Senate Judiciary Committee that he thinks the federal guidelines that dictate proper sentences for criminals are too strict--particularly for drug offenders. The guidelines, he told the senators, fail to distinguish between drug dealers and first-time offenders and casual users. As a result, judges occasionally depart from the guidelines in order to hand out sentences they deem more fair. Rosenbaum's remarks failed to sway the senators, who promptly passed the bill at hand, a measure to increase penalties for the least serious drug offenses.

But in the Bush era the price of dissent--any dissent--has risen considerably, and stiffer guidelines weren't the only thing Rosenbaum got for his troubles. In the months since his testimony, Senate Republicans have called him a liar and ordered an investigation into the sentences handed down by Rosenbaum and the rest of the state's federal bench. In March, the head of the committee began threatening to subpoena Rosenbaum and his records, an unprecedented move that conservatives and liberals alike have decried as a threat to judicial independence.

Finally, last month, Congress tucked an amendment further tying judges' hands into the so-called Amber Alert bill, which created the much-touted nationwide alert system for recovering missing children. Lawmakers, rushing to adjourn for spring break, voted unanimously to pass the law. The amendment, named for Florida freshman Rep. Tom Feeney, a Republican, makes it harder for judges to depart from sentencing guidelines. The new law, backed by U.S. Attorney General John Ashcroft, requires that each and every departure from established sentencing guidelines be reported to Congress and reviewed by a federal appeals court. The law also reduces the number of judges on the U.S. Sentencing Commission, the panel that draws up the guidelines.

The amendment was attached to the bill without much discussion and with no public hearings. Had they asked, the senators would have heard from a host of powerful opponents spanning the ideological spectrum, including the American Bar Association, the national Association of Criminal Defense Lawyers, the U.S. Judicial Conference, the majority of the members of the Sentencing Commission itself, and William Rehnquist, chief justice of the U.S. Supreme Court. The amendment, Rehnquist opined, "would seriously impair the ability of the courts to impose just and reasonable sentences."

Congress created the Sentencing Commission in 1984 in an attempt to end the disparities in punishment meted out by different judges. The guidelines are grids: One side lists levels of severity of a particular type of offense (say, the quantity of drugs in an offender's possession); the other side is used to quantify the offender's criminal record. Typically, each spot on the grid lists a range of months that comprise an appropriate sentence. Judges may hand down a sentence anywhere within the range.

The stringent guidelines led to a mushrooming U.S. prison population. There are currently more than eight million people behind bars worldwide. Two million of those are in the United States, and approximately one-fourth of that number are incarcerated for nonviolent drug offenses. According to the most recent issue of Sojourners magazine, the United States locks up more people on drug offenses than are contained in the entire prison system of the European Union--whose population is higher by 90 million.


Rehnquist and other critics had hoped that lawmakers would at least hold hearings before passing the new rules. Even a cursory review of sentencing statistics would have shown that recalcitrant judges aren't the main source of departures, they note. Currently, judges stray from the guidelines in just 10 percent to 15 percent of cases.

Almost 80 percent of departures from sentencing rules stem from government plea bargaining and from attempts by prosecutors to deal with skyrocketing caseloads in Mexican-border states. Yet the Feeney Amendment does not change the rules regarding departures for prosecutors, only judges.

Judges and defense attorneys have long griped that the system is skewed by the prosecutorial prerogative to show leniency to defendants who have offered "substantial assistance." The federal guidelines are so strict that a major drug dealer can get a drastically reduced sentence by handing over information on his suppliers, they complain--but there are no comparable loopholes available to the dealer's girlfriend, in whose house he might have done business, or to his customers.

Senate Republicans don't see the same inequities in the system as Rosenbaum does, however. Judiciary Committee Republicans seized on two cases that arose during his testimony last May. In one, he sentenced a young drug offender to 10 years in prison instead of the 10 years and one month called for by the guidelines. In the other, he concluded that mitigating circumstances justified shaving nine months off a sentence of nearly five years.

Rosenbaum did not respond to interview requests. But according to Justice
Department statistics, Rosenbaum's sentencing practices were about the same as those of his Minnesota colleagues--and federal judges in Minnesota actually imposed sentences longer than the national median from 1998-2002.

The amendment's critics suspect it was not Rosenbaum's courtroom decisions that got him in hot water so much as his willingness to speak out. "Chief Judge Rosenbaum's candor and insight was not what the congressional subcommittee wanted to hear," the National Association of Criminal Defense Lawyers complained in a letter accompanying the group's resolution condemning the Senate's attempts to subpoena the judge and his files. "The subcommittee issued a 22-page report that did not scruple to accuse Judge Rosenbaum of perjuring himself before, and willfully misleading, the committee.... The [organization's resolution] condemns the congressional bullyragging of Judge Rosenbaum, and forthrightly asserts the doctrines of separation of powers and the independence of the judiciary."

Judiciary Committee leaders have agreed to postpone issuing any subpoenas while a compromise is sought. But the fact that they persist frightens lawyers who practice in federal courts. "Just how far out on the fringes these conservatives are is illustrated by the fact that one of them, Tom DeLay, labeled Judge Rosenbaum as part of the 'liberal legal establishment,'" complains Minneapolis defense attorney Jim Ostgard. "'Liberal judge' is an oxymoron."

"Most local criminal defense lawyers would prefer to try their cases with other judges, and I myself have been threatened with contempt more than once while trying a case before him," he continues. "He is definitely not soft on crime, definitely not a bleeding heart. He was the first federal judge in Minnesota to impose a sentence of life without parole, and just last fall he imposed three life sentences without flinching, for the young men convicted of killing the little girl caught in the crossfire of a gang shootout in St. Paul in 1996.

"Without question, however, he is also a judge who is totally conscientious about doing the right thing when it comes to sentencing, and he does exactly what a good judge must do by looking carefully at the individual facts of a case for guidance in sentencing. He has refused to let a bunch of politicians sitting a thousand miles away sentence people by remote control, and I have great respect and regard for his sense of fairness and justice at every stage of a criminal case.

"The subpoena for Judge Rosenbaum's records is unprecedented, is meant to be intimidating, and I hope the judge puts up a vigorous fight," Ostgard concludes. "The remedy for an improper sentence is appeal, not an inquisition by a bunch of cynical politicians looking for political advantage. Judge Rosenbaum's sentences are usually upheld by the appeals court. That should be enough said."

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