[Lerkfish]

this CNN report

Please read the entire story, but the points I found interesting were:

President Bush in April signed into law the wide-ranging child protection legislation that, among other things, will establish a national "Amber Alert" communications network to respond to child abductions.

Tucked into that measure was a provision sponsored by Rep. Tom Feeney, R-Florida, intended to make it more difficult for federal judges to depart from federal sentencing guidelines and easier to appeal light sentences.

and:

"Congress needs to undo the damage that the Justice Department is doing to the federal criminal justice system," Kennedy said. "The independence of the federal judiciary serves the nation well."

So....what do you think? is this a benign effort to make sentencing uniform?
If so, why are ony "lenient" sentences being tracked and reported?

To me, this puts a weird sort of leverage in the hands of prosecutors BEFORE trial, which seems as if it will force judges to go with the harshest sentence, even if their judgement tells them otherwise.

Doesn't this seem a bit overreaching and an intrusive interjection of federal philosophy into the state level judiciary?

Is this blurring the lines of power?

does this fall under prong one?:

prong one: control all three branches of the government, and the intel community. ..... More and more power controlled by less and less people.

I dunno. what do you guys think when you read this article?

[SimeyTheLimey]

Lerk, you are going to take this as criticism of journalists, and I hope that you won't therefore get all defensive about it, but here goes. I'm always interested in the way that stories like this become personalized. The headline, and most of the story is about Ashcroft. A quick glance makes it seem that this is all his personal idea. Then you read down and see that actually, DOJ is just complying with a law passed by Congress.

The memo, first reported by The Wall Street Journal, is part of a Justice Department effort to implement a law passed by Congress earlier this year intended to bring even greater uniformity to federal prison sentences.

President Bush in April signed into law the wide-ranging child protection legislation that, among other things, will establish a national "Amber Alert" communications network to respond to child abductions.

Tucked into that measure was a provision sponsored by Rep. Tom Feeney, R-Florida, intended to make it more difficult for federal judges to depart from federal sentencing guidelines and easier to appeal light sentences.

So why is the article written that way? It's misleading. Maybe it isn't misleading in a malicious way. I think more likely that the writer wrote it that way to make the story more accessible. But it is still misleading. This kind of thing contributes to the public's misunderstanding of how their government actually works.

[nonhuman]

Well, regardless of who's responsible for this, Ashcroft or Congress, I think it's a bad idea. Judicial flexibility is a very good thing in my opinion, and I think the whole reason to have judges is because they are people whose judgement we trust. The law is not a static, unchanging thing. It has to be flexible enough to accomadate changes in society or it risks becoming too authoritarian. and impeding social progress.

[davesimondotcom]

Whether it's a good or a bad idea, it has to be done, after all, it's a part of the Master Plan, Prong One!

Jeez, Simey, didn't you get the memo? Or have you been forgetting to attend your Vast Right-Wing Conspiracy Meetings every Tuesday night?

[Lerkfish]

unwarranted personal attack.

[zigzag]

This, to me, is the most revealing part of the article:

"Feeney's amendment drew opposition from the American Bar Association, the National Association of Criminal Defense Lawyers and Chief Justice William H. Rehnquist, who said in a letter to the Senate Judiciary Committee that it "would seriously impair the ability of courts to impose just and reasonable sentences."

The U.S. Sentencing Commission also opposed the amendment, urging that it be permitted to complete a lengthy study into the reasons behind judges' decisions to impose lighter sentences."

When both the NACDL, Rehnquist, and the Sentencing Commission are objecting to the amendment, you can bet that it's probably of questionable wisdom. I don't know enough about it personally. I don't have a problem with sentencing guidelines, but when they're mandatory, you tend to run into problems, as illustrated by the drug sentencing laws.

It's true that Congress passed the law (who's gonna vote against something called "Amber Alert" over a little amendment and risk being called a defender of child killers?), and it's true that Ashcroft is supposed to enforce the laws that Congress passes, but as I understand it, Ashcroft was the driving force behind the amendment in the first place, and he's milking it. So Ashcroft's talk about his "solemn duty to enforce the law" rings a little hollow. Even Attorneys General have agendas.

As for whether it's part of some larger strategy to control the three branches of government, I would say that that's characteristic of most administrations. It's just a matter of how much they can get away with. This is a step in that direction, but IMO only a small one.

[spacefreak]

Originally posted by SimeyTheLimey:
A quick glance makes it seem that this is all his personal idea. Then you read down and see that actually, DOJ is just complying with a law passed by Congress... This kind of thing contributes to the public's misunderstanding of how their government actually works.

And Lerk's selected quotes contributes to the misunderstanding even more. It's like spinning spin.

[Nonsuch]

Has there been some rash of leniency that I haven't heard about? I didn't even know this was a problem.

[Lerkfish]

Originally posted by spacefreak:
And Lerk's selected quotes contributes to the misunderstanding even more. It's like spinning spin.

If you'll note, I posted the link and said:
Please read the entire story, but the points I found interesting were:

I guess in your zeal to launch yet another personal attack you forgot to read what I had actually said.


unwarranted personal attack.

[davesimondotcom]

Originally posted by Lerkfish:
unwarranted personal attack.

I didn't mean to attack Simey for not attending the meetings. I know he's busy with his studies and work and all of that.

I am sorry, Simey.

(Note the smiley at the end of the first post. It was a JOKE.)

[davesimondotcom]

Originally posted by Nonsuch:
Has there been some rash of leniency that I haven't heard about? I didn't even know this was a problem.

Unless "leniency" is a new term for "West Nile Virus," I'm pretty sure that it isn't a problem.

[davesimondotcom]

Originally posted by spacefreak:
And Lerk's selected quotes contributes to the misunderstanding even more. It's like spinning spin.

I think it's quite clear in Lerk's first post that we should read the WHOLE article.

He simply quoted parts that backed up his point. I don't see anything wrong with that.

[Lerkfish]

Originally posted by davesimondotcom:
I think it's quite clear in Lerk's first post that we should read the WHOLE article.

He simply quoted parts that backed up his point. I don't see anything wrong with that.

thank you, and further, I encouraged input from everyone else and asked what they thought. If i was "spinning" I wouldn't do that.

[davesimondotcom]

Perhaps, just perhaps, this is an effort to make sentences more FAIR, i.e. a black guy getting 20 years for the same thing a white guy got 10 months probation for is a bad thing, right?

[Lerkfish]

Originally posted by davesimondotcom:
Perhaps, just perhaps, this is an effort to make sentences more FAIR, i.e. a black guy getting 20 years for the same thing a white guy got 10 months probation for is a bad thing, right?

I might agree if it were being pushed by someone other than Ashcroft.
But since there are people all over in the judicial community up in arms about it, that signals to me it is likely a bad thing.

[SimeyTheLimey]

Originally posted by zigzag:
but as I understand it, Ashcroft was the driving force behind the amendment in the first place, and he's milking it. So Ashcroft's talk about his "solemn duty to enforce the law" rings a little hollow. Even Attorneys General have agendas.

OK, if that is the case that does make a big difference. I've just noticed in a general way that articles like that like to personalize issues more than is reasonable. From the perspective of someone who works in Washington it gets a bit ludicrous sometimes. But if in this particular case it began with him, that isn't the same thing.

Anyway, back to the topic, I'm interested in Rehnquist's position. Maybe you can fill me in. I understood that the sentencing commission is filled by judges in the first place, and that the point of the sentencing commission was to standardize sentences. Is that not so? Or perhaps is it that this just goes too far toward standarzation?

I wonder also if there is equal pressure against excessive sentencing?

[zigzag]

Originally posted by SimeyTheLimey:
I've just noticed in a general way that articles like that like to personalize issues more than is reasonable. From the perspective of someone who works in Washington it gets a bit ludicrous sometimes.

Yes, I agree in principle. I'm often astonished at the way legal issues are reported. It's just very hard for lay people (and even some legal writers) to understand the process. It's like me trying to write about space science. Never having practiced criminal law, I don't feel confident writing about this stuff myself.

Anyway, back to the topic, I'm interested in Rehnquist's position. Maybe you can fill me in. I understood that the sentencing commission is filled by judges in the first place, and that the point of the sentencing commission was to standardize sentences. Is that not so? Or perhaps is it that this just goes too far toward standarzation?

I wonder also if there is equal pressure against excessive sentencing?

I don't know enough about the details, I just inferred from the rather diverse opposition that it's probably an ill-advised law, and I tend to be opposed to mandatory sentencing in general (this seems to be as close as you can get to mandatory without being mandatory). I think guidelines are reasonable, but I lean against mandatory.

The sentencing commission sets the guidelines in the first place, so it does seem inapposite for them to be objecting to the amendment, but they seem to be aware of their own fallibility and want to look into it further (more studies!). Also, as I understand it and as you suggest, they're meant to be guidelines, not inviolable standards.

I don't know about any pressure against excessive sentencing. Being the "Amber Alert", I doubt you'll find many politicians taking public stances against it.

[zigzag]

Originally posted by davesimondotcom:
Perhaps, just perhaps, this is an effort to make sentences more FAIR, i.e. a black guy getting 20 years for the same thing a white guy got 10 months probation for is a bad thing, right?

That's a good point, and is a good reason for sentencing guidelines. However, I seriously doubt that it's the motivation behind this particular law.

I don't disagree with the desire to keep child abductors behind bars, I just think we need to be careful about imposing these kinds of limitations on the judiciary.

[Lerkfish]

Originally posted by zigzag:
That's a good point, and is a good reason for sentencing guidelines. However, I seriously doubt that it's the motivation behind this particular law.

I don't disagree with the desire to keep child abductors behind bars, I just think we need to be careful about imposing these kinds of limitations on the judiciary.

I wonder if the aspect of prosecutors being essentially informants on Judges is an area of concern. It also begs the question of allowing prosecutors to determine what is "lenient" and what is not, whether they are qualified to do so, since they could hardly be considered impartial in the proceedings. They are ALWAYS going to think the sentence is too lenient, that's their job.

[BDiddy]

Originally posted by Lerkfish:
I wonder if the aspect of prosecutors being essentially informants on Judges is an area of concern. It also begs the question of allowing prosecutors to determine what is "lenient" and what is not, whether they are qualified to do so, since they could hardly be considered impartial in the proceedings. They are ALWAYS going to think the sentence is too lenient, that's their job.

Another thing to consider is this: aren't most judges elected officials? Doesn't flexible sentencing requirements allow for some foul play (i.e. I'll throw the book at the accused if you support my re-election bid)?

[The Mick]

Originally posted by Lerkfish:
I might agree if it were being pushed by someone other than Ashcroft.

I agree completely. After the Patriot Act, anything he pushes forward in Washington deserves some extra scrutiny IMHO.

[zigzag]

Originally posted by BDiddy:
Another thing to consider is this: aren't most judges elected officials? Doesn't flexible sentencing requirements allow for some foul play (i.e. I'll throw the book at the accused if you support my re-election bid)?

Federal judges are appointed, with lifetime tenure. That diminishes, if not entirely eliminates, the kind of politicking you describe.

Federal judges are human and have their biases, but overall I prefer to give them a degree of discretion when it comes to sentencing. I think guidelines are a reasonable compromise, but that they should remain just that - guidelines.

[spacefreak]

Originally posted by Lerkfish:
I guess in your zeal to launch yet another personal attack you forgot to read what I had actually said.

The questions you asked were in regards to your selected quotes, which in no way reflected the complete nature of the article. Nothing I said was an attack, and it definitely wasn't personal - unless you take all criticism as a personal attack.

[BDiddy]

Originally posted by zigzag:
Federal judges are appointed, with lifetime tenure. That diminishes, if not entirely eliminates, the kind of politicking you describe.

Federal judges are human and have their biases, but overall I prefer to give them a degree of discretion when it comes to sentencing. I think guidelines are a reasonable compromise, but that they should remain just that - guidelines.

I was referring to state judges. I have done some research, and it appears that they are indeed elected.

[zigzag]

Originally posted by BDiddy:
I was referring to state judges. I have done some research, and it appears that they are indeed elected.

Yes, state judges are generally elected. I assumed you were referring to federal judges because that's what this story is about.