CHIEF JUSTICE CRITICIZES OBSCURE LAW

WASHINGTON - Chief Justice William Rehnquist criticized Congress in
unusually pointed terms Wednesday for a recent law that places federal
judges under special scrutiny for sentences that fall short of those
called for by the federal sentencing guidelines.

The legislation, enacted last spring as a little-noticed amendment to
the popular Amber Alert child protection measure, "could appear to be
an unwarranted and ill-considered effort to intimidate individual
judges in the performance of their judicial duties," the chief
justice said in his annual year-end report on the federal judiciary.

"It seems that the traditional interchange between the Congress and
the judiciary broke down" when the amendment passed without any
formal evaluation from the judiciary, he added.

At its most recent meeting, in September, the Judicial Conference of
the United States, a group of 27 judges who make policy for the
federal courts, voted unanimously to ask Congress to repeal the
amendment. Congress has not acted on the request from the conference,
which the chief justice heads, and the prospect that it will do so
appears slight.

The chairman of the House Judiciary Committee, Rep. James
Sensenbrenner, R-Wis., issued a statement Wednesday defending the
legislation and responding to the chief justice's criticism. He said
it had been necessary for Congress to act because the "growing
problem of downward departures" -- the term for sentences that fall
below the minimum produced by the guidelines -- had been "undermining
sentencing fairness throughout the federal system."

Sensenbrenner said Congress was aware of the judiciary's opposition
when it adopted the amendment.

Nonetheless, it is clear that Congress is not of one mind on the
question. Sen. Edward Kennedy, D-Mass., a leading member of the Senate
Judiciary Committee, called the chief justice's criticism
"extraordinary" and said he agreed that the amendment was
undermining judicial independence, by creating "blacklists based on
the sentencing practices of individual federal judges."

Kennedy said he had introduced a bill to repeal the amendment, which
he described as a "serious mistake" that had been enacted "without
hearings or meaningful debate."

The measure at issue is known as the Feeney Amendment, for its
sponsor, Rep. Tom Feeney, R-Fla. It instructed the U.S. Sentencing
Commission, the agency that sets the guidelines, to issue new rules to
"ensure that the incidence of downward departures is substantially
reduced."

The commission was ordered to maintain judge-by-judge records of
sentencing departures and to send the files to the attorney general,
who in turn is obliged to provide the information to the judiciary
committees of both houses.

Downward departures occur in about 35 percent of all federal
sentences. But the Judicial Conference said in September that the
statistic was misleading because most of those sentences were imposed
as part of "fast track" proceedings for immigration and drug cases
in federal judicial districts along the Mexican border and were
supported by federal prosecutors.

In one sense, given the Judicial Conference's official opposition to
the Feeney Amendment, Rehnquist's critical remarks did little more
than reflect existing judicial policy.

But the chief justice's choice of subject for his year-end statement
- -- this was his 18th -- is never casual, and by making the sentencing
debate the focus of the report, he was clearly trying to raise the
issue's public visibility and bring it more forcefully than before to
the attention of Washington policy-makers.