Republican Appointees and Judicial Discretion: Cases Studies From the Federal Sentencing Guidelines Era Professor David M. Zlotnicka Senior Justice Fellow – Open Society Institute Nothing sits more uncomfortably with judges than the sense that they have all the responsibility for sentencing but little of the power to administer it justly.1 Outline of the Report This Report explores Republican-appointed district court judge dissatisfaction with the sentencing regime in place during the Sentencing Guideline era.2 The body of the Report discusses my findings. Appendix A presents forty case studies which are the product of my research.3 Each case study profiles a Republican appointee and one or two sentencings by that judge that illustrates the concerns of this cohort of judges. The body of the Report is broken down as follows: Part I addresses four foundational issues that explain the purposes and relevance of the project. Parts II and III summarizes the broad arc of judicial reaction to aThe author is currently the Distinguished Service Professor of Law, Roger Williams University School of Law, J.D., Harvard Law School. During 2002-2004, I was a Soros Senior Justice Fellow and spent a year as a Visiting Scholar at the George Washington University Law Center and then as a Visiting Professor at the Washington College of Law. I wish to thank OSI and these law schools for the support and freedom to research and write. Much appreciation is also due to Dan Freed, Ian Weinstein, Paul Hofer, Colleen Murphy, Jared Goldstein, Emily Sack, and Michael Yelnosky for their helpful c omments on earlier drafts of this Report and the profiles. A host of law students from Roger Williams University School of Law and the Washington College of Law contributed many hours of document review, record keeping, correspondence, legal research and editing to this effort inc luding Carolyn Medina, Kyle Zambarano, Kataryna Lyson, Christina Vitale, Sarah Garcia, Sarah Potter, Matthew Fabisch, Christine List, Adam Ramos, Alexandria Baez, Scott Carlson, and Kristina Hultman. Lastly, my appreciation and compassion is extended to the many inmates who provided their documents and their life stories without any expectation of legal assistance in their cases. 1Former Judge John Martin, a Reagan appointee and former United States Attorney resigned in June 2003 in protest over Congressional restrictions on judicial discretion. Ian Urbina, New York’s Federal Judges Protest Sentencing Procedures, N.Y. TIM ES, December 8, 2003, at B1. 2In Booker v. United States, 543 U.S. 220 (2005), the Supreme Court invalidated the U.S. Sentenc ing Guidelines as a mandatory regime. Although the Court preserved a signific ant “advisory” role for the Guidelines, sentenc ing is now governed by §3553(a) of the Sentenc ing Reform Ac t. Thus, it is fair to say that the “Sentencing Guidelines era” ended with Booker. 3This Report and the profiles can be found at http://faculty.rwu.edu/dzlotnick. Additional Appendices on the website contain the research methodology and additional statements by judges who are the subject of complete profiles. Additional profiles of sentencings by Democrat-appointees will also be added in the future. changes in the sentencing environment during the Guidelines era. Part IV discusses my findings with regard to the Republican-appointed district court judges in this period. Part V is forward looking and discusses how Republican appointee opinion could be harnesses for reform in the post-Booker era. The Conclusion explains how this Report explodes the conservative myth of the liberal judiciary and urges policymakers to more carefully consider the experience of the federal judiciary in determining the appropriate balance between mandatory sentencing rules and judicial discretion. I. Introduction: Four Questions Before presenting the substance of the report and the profiles, this Introduction discusses four foundation issues intended to explain the purposes of this study and why it is relevant to the post-Booker sentencing policy debate. The questions are as follows: A. Why should judicial voice matter? More bluntly, why should policymakers or the public care if unelected, life tenured judges disagree with legislatively enacted sentencing policies? B. Why focus on Republican appointees and their cases? What about these judges and their cases is particularly revealing or relevant to the future of sentencing policy? C. Why case studies? What can be learned from in-depth portraits of individual cases and judges that cannot be culled from the wealth of sentencing data collected by the Sentencing Commission, other governmental bodies, and public interest groups? D. Why are the cases in this study relevant now that the U.S. Supreme Court has ruled that the Sentencing Guidelines are “advisory” and no longer binding rules which judges must follow? A. Judicial Voice Matters. Over the past twenty-five years, conservative politicians have unleashed a torrent of criticism against the federal judiciary.45 They have assailed judicial decisions in individual cases and proposed legislation to 4For example, in the aftermath the refusal of several federal courts to interfere with the Florida judicial system’s decisions in Terry Schiavo case, House Majority Leader Tom DeLay went so far as to say “the time will come for the men responsible for this to answer for their behavior.” Mike Allen, Delay Wants Panel to Review Role of Courts Democrats Criticize His Attack on Judges, Washington Post, April 2, 2005, at A9. 5 In 1996, Judge Harold Baer Jr.(S.D.N.Y) initially granted a motion to suppress evidence and a confession in a large drug case. Picked up by the media, his ruling caused an uproar in Congress. In a letter to President Clinton, Republican members of Congress Fred Upton, Michael Forbes, and Bill McCollum wrote, “[w]e respectfully request that you join us in calling for his resignation from the federal bench. He has turned his back on the millions of residents of communities like the one in this case who are prisoners in their own homes because of violent drug traffickers.” cited at http://www.ajs.org/cji/cji_political threats.asp. See 2 restrict the jurisdiction of the federal courts.6 Judicial sentencing discretion has received particular and consistent attention. With the dual goals of getting tough on crime and promoting sentencing uniformity, conservative critics have sought to increase criminal penalties and to restrict judicial discretion. Both of these goals were significantly advanced at the start of the Sentencing Guidelines era. In 1984, the Sentencing Reform Act (“ SRA”) mandated the creation of the United States Sentencing Guidelines and abolished federal parole. Soon thereafter, in 1986, the Federal Anti-Drug Abuse Act (“1986 Act”) created quantity based mandatory minimums for most drug felonies that started at five and ten years and escalate to twenty years and life without parole for recidivists.7 In the beginning of the Sentencing Guidelines era, there was significant and sharp judicial resistance. However, since the early years, much of the judiciary, and certainly its official organs, have generally taken moderate positions and sought to engage the elected branches in a reasoned debate. For example, the Judicial Conference, and its Criminal Law Committee, have typically argued that a degree of judicial discretion is necessary component of a just sentencing regime, but without advocating a return to the pre- Guideline system of unfettered judicial sentencing power.8 Similarly, the judiciary has argued that mandatory minimums were both unwise in principle and unnecessary given the existence of Sentencing Guidelines.9 also Jon. O. Newman, The Judge Baer Controversy: Correspondence from the White House, Senator Dole, Congressmen, and Judges, Judicature, Vol. 80, Number 4, January-February (1997). Judge Baer later reversed his own ruling, only adding fuel to the fire that the judiciary could be intimidated. 6t See e.g., Constitution Restoration Act, H.R. 1070, 109 h Cong. (2005); Marriage Protection Act, H.R. 1100, 109th Cong. (2005). 7See P.L. 99-570, codified at 21 U.S.C. § 841(b)(1)(A). 8 The federal judiciary speaks first through the Judicial Conference. The Chief Justice presides over the Conference whose membership includes the chief judge of each circuit court, the chief judge of the court of international trade and an elected district judge from each regional judicial circuit. Much of the Conference’s work is done through a network of committees. The membership of these committees is controlled by the Chief Justice. See www.uscourts.gov/judconf.html See Letter from Leonidas Ralph Mec ham, Sec retary, Judic ial Conferenc e, to Honorable Orrin Hatc h, Chairman, Committee on Judic iary (April 3, 2005) available at www.uscourts.gov/judiciary2003/feeneyamendment.pdf; Letter from Sim Lake, Judicial Conference to Honorable F. James Sensenbrenner, Jr, Chairman, Committee on the Judiciary, (April 25, 2005) (on file with author). 9See 79-Oct A.B.A. J. 78, 78 (October 1993) ( 90% of federal and state judges surveyed thought mandatory minimums for drug violations were a bad idea). In 1996, the Federal Judicial Center Survey on sentencing reports that 73% of district and 69% circuit court judges felt that mandatory guidelines were not necessary to direct the sentencing process, rather most judges favored an advisory guidelines system. In addition, 79% of federal district judges asked, favored the idea of “delinking” the guideline levels from the mandatory minimums. Molly Treadway Johnson and Scott A Gilbert The U.S. Sentencing Guidelines: 3 Despite the efforts of the federal judiciary for a meaningful dialogue with Congress about the Guidelines and need for mandatory minimums, the right has largely rejected their entreaties and suggestions, maintaining that Congress need not consider the judiciary’s views because criminal justice policy is the sole purview of the elected branches. The role of appointed, life tenured judges, in their view, is simply to enforce the laws as passed by the legislature.