IN RARE SHOWDOWN, HOUSE PANEL TO PROBE MINNESOTA U.S. JUDGE

Minnesota Jurist's Records Expected to be Subpoenaed

In a rare showdown between Congress and the judiciary, House Republicans are
planning to subpoena records of a federal judge they say broke the law by
letting drug offenders off too lightly and then misleading lawmakers about
it.

Wednesday, the House Judiciary Committee is expected to authorize Chairman
F. James Sensenbrenner Jr. (R., Wis.) to subpoena records from Chief Judge
James M. Rosenbaum of Minnesota's federal district court. The move comes a
month after the committee asked the General Accounting Office to review
sentencing decisions among all federal judges in Minnesota.

In taking an extraordinary step against a sitting judge, the House action
opens a new front in a fight over the direction of the federal judiciary.

Judge Rosenbaum, a former federal prosecutor who was appointed to the bench
by President Reagan, says he acted lawfully, and his lawyer argues a
subpoena would overstep congressional authority and threaten judicial
independence.

Federal judges are watching the conflict warily, said Chief Judge John C.
Coughenour of U.S. District Court in Seattle. "I think it would be
demoralizing and very disturbing to most of us" for Congress "to focus on
individual judges and their practices," he said. "Judges struggle mightily
with their sentencing decisions."

Subcommittee Chairman Howard Coble (R., N.C.) said the committee isn't on "a
witch hunt for every district court judge in the country." But committee
members didn't rule out seeking disciplinary action, including impeachment.

Judge Rosenbaum, 58 years old, was confirmed to the federal bench in
Minneapolis by a Republican-controlled Senate in 1985. Congress, unhappy
with what lawmakers considered an excess of lenient sentences and disparity
in punishments for similar crimes, in 1987 abolished parole and set up a
commission to draft sentencing guidelines for judges to follow.

The federal prison population has since skyrocketed, reaching 128,000
sentenced inmates in 2002 from 33,000 in 1987, with drug offenders becoming
the majority. Advocates credit the harsher sentences with a declining crime
rate in the 1990s.

But critics contend that some defendants are unfairly punished. In
particular, they complain that possession of crack cocaine, which is more
prevalent among black offenders, is more heavily punished than possession of
powdered cocaine, a more expensive variety of the drug that is favored by
white offenders.

Last May, Judge Rosenbaum appeared before a Judiciary subcommittee to
testify against a bill to reinstate longer sentences after the U.S.
Sentencing Commission decided to lower penalties to 10 years for some
first-time drug offenders. The bill failed, but the hearing alerted the
committee to Judge Rosenbaum's sentencing practices. In his testimony, he
cited cases he said demonstrated that the old rule punished "minor and
minimal participants" in drug trafficking as heavily as some kingpins.

Republicans say that Judge Rosenbaum, while criticizing strict minimums he
said he was required to follow, actually imposed lighter sentences on
several defendants. In one case, Judge Rosenbaum said a defendant "accepted
$2,000 for accepting a package. This was the extent of her involvement." The
judge said the defendant faced a minimum of five years under the old
guidelines and four years under the new. In fact, Judge Rosenbaum sentenced
her to "six months with work-release privileges or accommodations to attend
school," according to a Judiciary Committee report.

In an August 2002 case, the judge sentenced a drug defendant to 10 years --
one month short of the 121-month guideline. "The guidelines were calculated
by a computer which apparently was not satisfied that 10 years is 120
months. And so we have a ridiculous extra month which I have taken off,"
Judge Rosenbaum told the defendant, according to a court transcript, adding:
"Now that represents an illegal departure." Judge Rosenbaum's lawyer,
Victoria Toensing, said the remarks didn't admit lawbreaking but reflected
"the judge's sense of humor."

Nonetheless, committee staff pressed Judge Rosenbaum for more records
concerning his sentencing decisions, but the judge and the committee
squabbled over access to sealed transcripts and other information. Rep.
Bobby Scott of Virginia, the subcommittee's ranking Democrat, said that
while Judge Rosenbaum "slightly misspoke" in his testimony, issuing a
subpoena would be a "bizarre overreaction." Prosecutors -- not the House
Judiciary committee -- should contest sentences they believe fall below the
legal minimum, Mr. Scott said.

Indeed, prosecutors successfully appealed one of Judge Rosenbaum's
sentences. In 2001, the federal appeals court in St. Louis found that Judge
Rosenbaum had abused his discretion by imposing a four-year sentence on a
drug offender, nine months short of the legal minimum.

But such appeals are rare. Of the more than 230,000 sentences handed down
from 1999 through 2002, prosecutors appealed only 282 of them, according to
Sentencing Commission statistics, including 138 cases where the defendants
also appealed.