CRIME BILL WOULD CURB JUDGES' POWERS

The bill that Congress recently passed setting up a national alert system
for child abductions includes provisions that have created an uproar among
federal judges and legal scholars because they limit judicial discretion in
sentencing criminals.

Critics say the limits would be an assault on judicial independence and a
step toward unraveling sentencing reforms enacted two decades ago.

"I'm a Republican, but I don't think this is good legislation," said John
F. Keenan, a federal district judge in New York. "I don't know of any
federal judge who thinks it's a good idea. It further erodes the discretion
and power that trial judges have."

The bill, which President Bush is expected to sign, would immediately
restrict judges' ability to give more lenient sentences than federal
guidelines call for in cases involving children and sexual offenses. For
example, it includes mandatory life sentences for those twice convicted of
child sexual offenses and a mandatory minimum of 20 years for kidnapping a
person younger than 18.

But other provisions in the bill will eventually limit judicial discretion
in a broad array of federal cases.

The bill gives the federal sentencing commission, created in 1984 to set
ranges in sentencing, six months to reduce substantially the opportunities
for judges to impose terms below the guidelines.

The bill also puts a two-year moratorium on adding grounds for leniency.

It directs appeals courts not to show deference toward trial judges'
sentencing rationales, overturning a 1996 Supreme Court decision on that
point. It also prohibits trial judges from identifying new grounds for
lenience if cases are sent back to them by an appeals court.

The bill allows the Justice Department to monitor the rates at which
individual judges impose sentences that fall below the range, which some
critics say is a step toward pressuring judges to impose longer sentences.

"We're getting closer to a scheme of having our sentencing guidelines being
no more than de facto mandatory minimums," said Steven Chanenson, a law
professor at Villanova University. Representative Tom Feeney, the Florida
Republican who sponsored the bill, said it was meant only to make
sentencing more predictable.

"Do you make the punishment fit the crime?" Mr. Feeney asked. "Or do you
make the punishment fit the arbitrary wishes of individual judges in
individual cases?"

Many prosecutors say they agree with the bill's goals.

"There needs to be equity and fairness for defendants no matter if they're
sentenced in Montana or Manhattan," said William W. Mercer, the United
States attorney in Montana.

While judges in those two places show leniency at essentially identical
rates - in about 12 percent of cases that do not involve defendants who
agree to aid prosecutors - there is enormous disparity among other parts of
the country. Judges in Southern California and Eastern Washington show
leniency in more than 50 percent of such cases; those in South Carolina do
so in 2 percent.

And judges nationwide have been showing leniency in a greater portion of
cases each year over the past decade.

The Justice Department says that many federal judges are reluctant to
impose significant prison sentences on white-collar criminals. It recently
provided the commission with a list of about 80 examples of what it called
unwarranted leniency. In all of them, the sentencing judge imposed a
sentence below the minimum required by guidelines, which specify relatively
narrow sentencing ranges.

One example involved Ralph E. Whitmore Jr., a former bank executive
convicted in what the department called "the most egregious bank fraud in
Alaskan history." The judge, H. Russel Holland, sentenced Mr. Whitmore to
24 months rather than the 46 to 57 months called for by the guidelines. The
judge took into account Mr. Whitmore's age at his sentencing, which was 67,
his health, and the harm the case had done to his livelihood. An appeals
court affirmed the sentence.

Judges often defend their need for discretion by citing cases involving
minor participants in the drug trade, like "mules" caught transporting
drugs and girlfriends or spouses of drug dealers.

"It was harrowing," said one judge, speaking about his experiences in
sentencing such people to extended prison terms. "You really felt like a
total instrument of injustice."

Many have been angered by the way the provisions on judicial discretion
were inserted, with little debate as part of the politically popular Amber
Alert legislation. The bill sailed through Congress last week, not long
after a missing Utah girl, Elizabeth Smart, was reunited with her family.

"It's a Trojan horse approach to sentencing reform," said Erik Luna, a law
professor at the University of Utah.

Mr. Feeney said the speed with which the bill was passed was a result of a
busy session and an urgent need to address an important problem.

"Have things moved pretty rapidly?" he said. "Yes. Have these issues been
simmering and fairly well known for some time? Yes."

Judges give sentences greater than guidelines call for in fewer than 1
percent of all sentences. But cases in which federal judges show leniency
to defendants who are not cooperating witnesses have increased by one or
two percentage points a year since September 1995. The rate was 18 percent
in 2001, the most recent for which data are available. That represents
about 10,000 of the 55,000 sentences imposed that year.

The bill is also at odds with some recent efforts in the states to roll
back strict sentencing laws.

"Many of the states have gone through cycles - three-strikes laws,
mandatory minimum sentences, raising sentences - and it's been tremendously
expensive," said Frank O. Bowman, a law professor at Indiana University and
an author of a treatise on sentencing. "States have to balance their
budgets, and at the state level the relative cost of prisons is quite high."

But those expenses are insignificant within the federal budget, Professor
Bowman said, "and the federal government can run a budget deficit."