• President's Column -- Protecting Judicial Independence, by new Council President, Locke E. Bowman

• Change of Leadership for the Council and Chicago Appleseed

• Council response to beatings of inmates at the Cook County Jail

Protecting Judicial Independence              

Among the privileges – perhaps the only privilege – of serving as President of Chicago’s least bureaucratic bar association is the privilege of the bully pulpit. With a view to taking maximum advantage of this opportunity, I plan to share my thoughts with you in these monthly newsletters on matters I think should be of interest to us all.

If there is a bedrock concern of the Chicago Council of Lawyers it is the creation and preservation of a strong, independent judiciary, not beholden to an electorate or to influence from the political branches of government.

We tend to presume that the federal judiciary, protected by Article III and appointed (in Illinois) after something like merit selection, exemplifies the ideal of independence. The system for selecting federal judges is certainly superior to the state process – election of candidates who have been slated by the Democratic party in exchange for financial contributions to the party.

But, of course, judges can never be fully insulated from efforts by the political branches to affect their exercise of discretion. Consider federal criminal sentencing. In that sphere, federal judges operate under a strict system of sentencing guidelines, imposed upon them some 14 years ago in an effort to correct a perceived lack of uniformity in federal sentencing. The guidelines, however laudable that purpose, abruptly changed the act of imposing sentence from an exercise of moral and judicious reason – independent judging, that is – into a game-like affair in which defense, prosecution and the judiciary fix a "criminal history" level and then debate the subtraction and addition of "points" to a final tally that equates to months of imprisonment for the defendant.

For years, the guidelines at least preserved remnants of an individual sentencing process. They have always provided for so-called "downward departures" from the guideline sentencing range in cases "outside of the heartland" of the sentencing guidelines – cases in which particular characteristics of the crime or circumstances of the defendant not foreseen by the guideline authors make the prescribed punishment unduly harsh. This opportunity for the exercise of mercy reflects a recognition that no amount of human ingenuity could anticipate every possible sentencing outcome.

This vital preserve of individual sentencing discretion is now under siege by right-leaning politicians in Washington. In April of this year, the Congress passed and the President signed legislation containing what former United States Attorney Alan Vinegrad has called "the most far reaching changes to the federal sentencing laws since the creation of the [guidelines]." Among other things, the so-called 2003 PROTECT Act:

• Directs the federal Courts of Appeal to review District Court sentencing decisions on a de novo basis and to reverse District Courts’ downward departures where the sentence does not advance the purposes of federal sentencing or is not "justified by the facts of the case."
• Instructs the federal Sentencing Commission to revise the guidelines "to ensure that the incidence of downward departures are substantially reduced."
• Bars the Sentencing Commission from promulgating any new downward departure guidelines for a period of two years, until May 2005.
• Gives the Attorney General the option to report to the House and Senate Judiciary Committees each and every downward departure decision within 15 days of its entry including the name of the judge making the decision.

This last requirement can only be read as an attempt on the part of Congress and the President to intimidate the federal judiciary into refraining from downward departures. Judge Paul A. Magnuson of the District of Minnesota saw it that way in an opinion he entered last month declining a defendant’s request for a downward departure. The opinion includes this stunningly candid comment: "If the Court were to depart, the Assistant U.S. Attorney would be required to report that departure to the U.S. Attorney, who would in turn be required to report to the Attorney General. The Attorney General would then report the departure to Congress, and Congress could call the undersigned to testify and attempt to justify the departure. This reporting requirement system accomplishes its goal: the Court is intimidated, and the Court is scared to depart." (United States v. Kirsch, No. 02-288(1) (PAM/RLE), slip op. at 3 (D. Minn. October 17, 2003))

Senator Orrin Hatch is reported to have said of the PROTECT Act that it’s Congress’ way of saying "we are sick of this, judges" – a reference to the misperception in Congress that federal judges frequently depart downwardly from the guideline sentencing range. But Congress has no business flexing its political muscle in an effort to intimidate federal district judges from exercising their best independent judgment as they apply sentencing law to the facts of a particular cases – even if Members of Congress (who aren’t judges and don’t face the responsibility for sentencing individual human beings to prison or other punishment) might take exception to some sentencing decision they’ve read about in the newspapers.

More fundamentally, as federal sentencing discretion continues to be constricted – with the result that sentencing becomes even more a pure numbers game with virtually no room for individualized discretion – it’s worth asking whether the effect is a basic denial of due process for criminal defendants.

A joint annual meeting of the Council and Chicago Appleseed was held on October 30th.  Hosted by the law firm of Holland & Knight, the event marked the 34th Annual Meeting of the Council and the 6th Annual Meeting for Chicago Appleseed.  

Carol Marin, television journalist and columnist for the Chicago Tribune, presented the keynote address, raising ethical issues of common concern to both lawyers and journalists.

The Council and Chicago Appleseed used the occasion to announce the change of leadership.  For the Council, David R. Melton stepped down after serving as Council president for two years, and  Locke E. Bowman, Legal Director of the MacArthur Justice Center, began his one-year term as Council president.  David will remain on the Board of Governors and will, in addition, serve as Chair of the Council's State Judicial Evaluation Committee.

For Chicago Appleseed, Charles F. Smith, Jr., stepped down as president of Chicago Appleseed.  He will remain on the Board of Directors and the Executive Committee.  In addition, Chuck remains our representative on the Board of Directors of the Appleseed Foundation.  Diana C. White, Deputy Director of the Legal Assistance Foundation of Metropolitan Chicago and a former partner in the law firm of Jenner & Block,  began her term as President of Chicago Appleseed.