Posted on 07/13/2005 7:06:50 AM PDT by ninenot
Wisconsin Congressman F. James Sensenbrenner Jr. has come under fire for second-guessing a federal appeals court ruling in a Chicago drug case.
In a letter to the chief judge of the U.S. 7th Circuit Court of Appeals, Sensenbrenner said a low-level drug dealer should have gotten 10 years in prison instead of just more than eight.
While critics say the letter was bizarre, misguided and ethically questionable, a spokesman for Sensenbrenner says the eight-year sentence was illegal and the Menomonee Falls Republican was simply doing his job as chairman of the House Judiciary Committee
The letter, the contents of which were first reported in Sunday's Chicago Tribune, criticizes both the Chicago U.S. attorney's office and a three-judge panel of the appellate court for actions in the case of Lissett Rivera.
While a version of the letter also was sent to U.S. Attorney General Alberto Gonzales, it was not given to Rivera's attorney.
Ethics and court rules generally prohibit lawyers from discussing pending cases with judges unless all the parties involved are notified. Sensenbrenner is a lawyer.
House Judiciary spokesman Jeff Lungren said Sensenbrenner's failure to send a copy of the letter to the defense lawyer was a simple mistake.
The letter, dated June 23, essentially demands that the sentence be increased.
In response, the court amended its opinion to refute Sensenbrenner's legal arguments, pointing out that a case mentioned in his letter has since been nullified by more recent rulings.
Chief Judge Joel M. Flaum ordered the letter be put into the public case file.
Flaum also wrote a reply to Sensenbrenner that says in part: "As I am sure you are aware, federal judges are instructed by the Code of Conduct for United States Judges to refrain from commenting on the merits of pending or impending judicial proceedings."
The drug conspiracy's leader was a longtime member of the Chicago Police Department's now-defunct gang unit, and was convicted of racketeering in 2001 and sentenced to life without parole. Twenty-two otherswere convicted of involvement in the ring. .
Rivera, a courier who had no prior record, was found guilty of conspiracy to distribute more than 5 kilograms of cocaine, which carries a 10-year mandatory minimum sentence. But the judge sentenced her to eight years and a month in prison.
The prosecutor did not object or appeal. Rivera did appeal, asking for even less time.
On June 16, the appeals court ruled that while Rivera should have received 10 years, it was powerless to change the sentence, because the government had not taken a cross-appeal.
John Nowacki, spokesman for the U.S. Department of Justice, said only that Gonzales received the letter and that it is being reviewed. Kim Nerheim, spokeswoman for the U.S. attorney's office in Chicago, said exactly the same thing.
A citizen brought Rivera's sentence to Sensenbrenner's attention, prompting the letter, Lungren said. He emphasized that it was a public document drafted to fulfill the Judiciary Committee's oversight responsibilities.
"Congress, in the exercises of its constitutional responsibility with regard to oversight of the judiciary, should proceed cautiously concerning inquiry into judicial action with which we merely disagree," Sensenbrenner's letter says. "However, with respect to judicial actions which are contrary to law, it is not only appropriate but essential that Congress act."
Many observers - including a member of the Senate Judiciary Committee - disagree.
"This is getting to be a serious and disturbing pattern," said Joe Shoemaker, spokesman for Sen. Dick Durbin (D-Ill.). "It's in effect saying to the judiciary, 'Be careful how you rule, because we're going to be watching you every minute of every day.' The whole point of judges appointed for life is to free them from threats of retribution."
Michael O'Hear, associate professor of law at Marquette University, said the letter struck him as "bizarre."
"It certainly comes across as cold-blooded and small-minded that the chair of the House Judiciary Committee should see this as a matter of such importance," he said. "We can debate whether this was unethical or not, but why he would even approach so close to the line over the matter of a low-level drug dealer being sentenced to eight years versus 10 years?"
Douglas Berman, law professor at Ohio State University, agreed.
"It seems like such a misplaced sense of priority," he said. "Aren't there more important things for him to be doing?"
Berman and O'Hear agreed that Sensenbrenner's interest in federal sentencing was warranted but questioned whether his actions in the Rivera case were appropriate.
O'Hear said Sensenbrenner was within his rights as a citizen to comment on court cases but should have been more careful, lest he be perceived as trying to intimidate the judges.
"His voice carries greater weight than that of an average citizen. . . . If the outcomes appear affected, people could lose confidence in the independence of the judiciary," O'Hear said.
Legislators should watch the courts and promote discussions about sentencing, Berman said, but in a collaborative way with a big-picture focus.
"It seems highly inappropriate and highly misguided for members of Congress to get so involved in any one case," he said.
The BlackRobe JackBoots seriously resent being reminded that they, too, are subject to authority.
Actually, Sensenbrenner is the JackBoot here.
We appoint Judges to JUDGE, and mandatory minimums are a ridiculous exercise of power grabbing. The Judge is the one trusted to decided the Facts of the case, and the circumstances of each decision.
Get Tough On Crime Rejects in the Congress deciding those issues from outside the courtroom are doing so to avoid tackling the real issues that might cause controversy.
Irregardless of the wisdom or lack there of, of mandatory minimums, the judge should follow the law. If the law is ten years then the sentence should be ten years.
This is just another, albeit small, example of judges violating the law with no consequence.
In response, the court amended its opinion to refute Sensenbrenner's legal arguments, pointing out that a case mentioned in his letter has since been nullified by more recent rulings....
""This is getting to be a serious and disturbing pattern," said Joe Shoemaker, spokesman for Sen. Dick Durbin (D-Ill.). "It's in effect saying to the judiciary, 'Be careful how you rule, because we're going to be watching you every minute of every day.'"
A classic socialist response to justice from a man who represents an enemy to freedom and to all Americans everywhere.
"The whole point of judges appointed for life is to free them from threats of retribution." i.e. - free them from any accountability to the people they are to serve and protect.
"Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience." -- C.S. Lewis
Court rulings. I sometimes wonder why we have a legislature at all, since judges are content to make and nullify laws through their rulings. At this point having a Legislature seems redundant.
That depends on the rulings. However, a member of Congress getting exorcised over a small sentencing disparity and then commenting on it without taking the time to have one of his staff look into it....Is not good.
HE's got other work to do.
The Court's re-write of its opinion was not shared with the MSM--or it was lost somewhere in the process.
Irrelevant.
The LAW says X. The COURT says Y. And its avid lawyer-defenders, who seek to enjoy High Priest and Final Arbiter rank rush to defend the Privileges of the Self-Appointed Almighties.
Screw them.
I'd agree that it looks bad, with one caveat: if this drug dealer is in Sensenbrenner's own congressional district, then the congressman is just working for his people.
Uh, not quite.
Juries are the "triers of facts", not the judge. His-her role is to rule on the law, after a jury has decided on the facts - which in this case the law was utterly and completely ignored.
And if this isn't a text book example of 'judicial activism' I don't know what is. A Federal Judge doesn't like a Federal Law passed by Congress so he ignores it.
"Power is the great evil with which we are contending. We have divided power between three branches of government and erected checks and balances to prevent abuse of power. However, where is the check on the power of the judiciary? If we fail to check the power of the judiciary, I predict that we will eventually live under judicial tyranny."
You are correct in your assessment...
You ignored the point of his letter. The judge had a LEGAL obligation to impose the 10 year minimum. The law is very clear. It's no different than the judge deciding to rob a bank, it's against the law. That is the point. All of that being said, I agree that "minimum sentencing" requirements ignore the vast differences of each case and the judge should have a little leeway in sentencing.
Tempest in a teapot. F. James Sensenbrenner Jr. is a great conservative and congressman, we could use about 100 more like him.
HE's got other work to do.
Sensenbrenner needs to change his last name. He keeps reminding me of some baseball owner, can't think of his name....:)
Even those who agree that federal minimum sentences is a usurpation of the proper role of judges should also understand that a law is a law. If the judges want to rule the guidelines unconstitutional, that is an approach they could take.
But simply ignoring the law is not something a judge is empowered to do. And a member of congress, responsible for passing the laws which govern our country, has every right to send letters to people who ignore the law.
That said, I think the appropriate action, if this was because of his position in a committee, would be to get a vote in committee to send the note.
If he was sending it simply because he was the congressman of the district where the judge resides, that would be fine but he shouldn't say it's because he's the chairman of the committee without having the committee backing.
Sensenbrenner ping!
Ummm Context is Key.
Juries for the most part dont have a hand in sentencing. Facts, and Circumstances are what a JUDGE is supposed to consider.
Also, Just to go a little further...since we are being overly anal.
The defendant could have waived a Jury trial.
No, this drug ring was in Chicago. It was run by a Chicago Cop (a Captain IIRC) who is now doing life - and rightfully so.
And there were 'no babes in the woods' involved in this drug ring. They were all gang bangers, career criminals and outright killers. This canard in the article about this guy and it being his first arrest is Bull... It just means this is the first time he was caught.
And having this judge arbitrarily and ILLEGALLY take 20% off the prison time is ... disgusting.
Actually Nullification (be it by a Jury, a Judge, or an enforcement official), while unspoken of in society is one of the more effective ways to combat an overreaching Legislature.
Umm....too late!
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