Audio Judge speaks out against Congress, Ashcroft (story audio) U.S. Rep. Tom Feeney talks with MPR's Elizabeth Stawicki Judge Donovan Frank's interview with Elizabeth Stawicki Photos Federal Judge Paul Magnuson Resources U.S. Justice Department: PROTECT Act fact sheet U.S. Rep. Tom Feeney's office Federal Judges Association Your Voice Join the conversation with other MPR listeners in the News Forum.

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Judge speaks out against Congress, Ashcroft
by Elizabeth Stawicki, Minnesota Public Radio
October 22, 2003

Federal Judge Paul Magnuson expressed concern in a recent ruling about policies of Congress and Attorney General John Ashcroft that he says intimidate and scare judges from departing downward from sentencing guidelines. (Photo courtesy of Department of Justice)

The man who recently led Congress to monitor federal judges' sentencing practices says he's disappointed with what he terms the "rhetoric" of Minnesota U.S. District Judge Paul Magnuson. Magnuson Tuesday sharply criticized policies instituted by Congress and the U.S. attorney general as intimidation against judges over leniency in sentencing. The author of the policies, U.S. Rep. Tom Feeney of Florida, says they were merely meant to hold judges accountable, not to threaten the independence of the court.

St. Paul, Minn. — Federal judges are usually reclusive, almost hermit-like in expressing opinions outside their rulings. So it is in that context that Judge Paul Magnuson's pointed criticism of Congress and Attorney General John Ashcroft was so atypical.

In the middle of a written explanation of his recent sentencing of a former grain elevator manager, Magnuson said one of the reasons he would not show leniency in the case was due to recent policies instituted by Congress and the attorney general -- policies he says intimidate and scare judges from departing downward from sentencing guidelines.

"I would remind the judge that he ought to get out the Constitution, where it's very clear that other than the United States Supreme Court, all of the other federal courts are only established by the will of the United States Congress," says U.S. Rep. Tom Feeney, R-Florida.

Under the Feeney Amendment, federal prosecutors must report to Ashcroft whenever a federal judge sentences an offender to less time than guidelines call for. Feeney takes issue with Magnuson's comments, and says the reports hold judges publicly accountable.

I would remind the judge that he ought to get out the Constitution, where it's very clear that other than the United States Supreme Court, all of the other federal courts are only established by the will of the United States Congress. - U.S. Rep. Tom Feeney, R-Florida

"All the law does is ask that if you're going to ignore the sentencing guidelines and hand out a more liberal sentence, that you ought to explain in writing what your logic and thinking was," says Feeney. "And that the Justice Department is going to keep track of how many times and how often individual judges in different circuits depart from the sentencing guidelines themselves."

Speaking for the Department of Justice, U.S. Attorney in Minneapolis Tom Heffelfinger says he's sorry that Judge Magnuson feels intimidated.

"I can say that it's not the intention of the Department of Justice to intimidate any judge," says Heffelfinger. "In practice, I'm confident that none of the judges that we deal with in Minnesota are intimidated by us or the Department of Justice."

Magnuson's comments put into words what many federal judges apparently fear -- that Congress and the U.S. attorney general are trying to control the judiciary. Those fears were particularly heightened in May, when Minnesota's Chief Judge, James Rosenbaum, was called to testify before the House Judiciary Committee. the committee threatened to subpoena his records in all cases in which he didn't abide by the guidelines.

Magnuson declined comment for this story. U.S. District Judge Donovan Frank in St. Paul says if the judges aren't abiding by the guidelines for valid reasons, the government can always appeal. He says what's troubling is that the monitoring is one-sided -- Congress and the attorney general are only looking at occasions when judges are lenient.

"No one is monitoring us to decide, 'Are they consistently departing upward and ignoring the law,'" says Frank. "They're looking at the downward departures, because someone's made a judgment that the appellate courts apparently can't monitor this with appeals."

Congressman Feeney's amendment was tucked into the PROTECT Act, an act that included the establishment of the Amber Alert system.

The president of the Federal Judges Association, U.S. District Judge Lawrence Piersol in Sioux Falls, says he believes the monitoring policies are a clear attempt at intimidation. He says he's not intimidated, but he's concerned -- along with most federal judges. Piersol says it's troubling to him that Feeney's amendment was tucked into the PROTECT Act without much debate.

"We got sideswiped, and didn't really have an opportunity to have a reasoned discourse with regard to whether these things were good or not, or whether there should be changes to what was being proposed," says Piersol. "Hopefully there won't be any sideswipes coming, but who knows?"

The Judicial Conference of U.S. Judges last month unanimously called for Congress to repeal Feeney's amendment. The organization is headed by Chief Justice William Rehnquist. It warned that the monitoring requirements could lead to the intimidation judges.

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