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Please see below the Intervention Letter addressed
today to President George Bush, together with our Press Release.
Thanks for your attention.
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International Commission of Jurists
P.O Box 216 - 81A, avenue de Chatelaine
CH - 1219 Chatelaine/Geneva, Switzerland
Tel : (022) 979 38 00 Fax : (022) 979 38 01
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visit our website :
http://www.icj.org
18 August
2003
H.E. Mr. George W. Bush
President of the United States of America
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
United States of America
Fax: +1 202-456-2461
Mr. President,
The International Commission of Jurists (ICJ) consists of jurists who
represent all the regions and legal systems in the world working to uphold
the rule of law and the legal protection of human rights. The ICJ's Centre
for the Independence of Judges and Lawyers is dedicated to promoting the
independence of judges and lawyers throughout the world.
We are writing to you regarding a directive from Attorney General John
Ashcroft contained in a July 28 memorandum to federal prosecutors to report
to the Department of Justice all “downward departure” sentencing decisions
from U.S. sentencing guidelines that meet certain criteria. We are
extremely concerned that the Attorney General’s directive to federal
prosecutors to compile for the Justice Department, in effect, a “blacklist”
of lenient federal judges and jurisdictions constitutes a serious
infringement on the independence of the judiciary and the rule of law.
As you know, this directive follows the “Feeney Amendment” that was included
in child protection legislation that you signed into law in April. The
Feeney Amendment, which was drafted by the Department of Justice, makes it
difficult for federal judges to depart from federal sentencing guidelines
and makes it easier to appeal “downward departures” even if, in the
discretion of a judge, a lower sentence is justified.
Despite the stated purpose of sentencing guidelines to reduce crime and
generate more uniformity in judicial sentencing, if strictly interpreted,
guidelines do not take into account mitigating factors. It is for this very
reason that sentencing should, to a large degree, remain within the
discretion of judges who, as part of their judicial function, take into
account the totality of circumstances before issuing a ruling.
The authority of judges to use their discretion in imposing lighter
sentences was confirmed by the U.S. Supreme Court in Koon v. United
States wherein Justice Kennedy wrote that, the
“federal tradition is for the sentencing judge to consider every
convicted person as an individual and every case as a unique study in the
human failings that sometimes mitigate, sometimes magnify, the crime and
punishment.”
Moreover, Chief Justice William Rehnquist expressed in a letter to the
Senate Judiciary Committee, that the Feeney provision “would seriously
impair the ability of courts to impose just and reasonable sentences.” The
American Bar Association, the National Association of Criminal Defense
Lawyers, and the U.S. Sentencing Commission, an independent agency created
by Congress in 1984 to set mandatory minimum sentences for federal crimes,
also oppose the current provision. It is particularly worrying that the
Sentencing Commission was not even notified of this measure in advance.
Other judges throughout the country have been also critical of the Feeney
amendment. As reported by the Wall Street Journal, U.S. District
Judge Joyce Hens Green, of the District of Columbia stated that,
“as a consequence of the mandatory sentences, we [judges] know that
justice is not always done. [You] cannot dispense equal justice by playing
a numbers game. Judgement and discretion and common sense are essential.”
Another U.S. District Judge, John S. Martin Jr., criticized Congress in
an op-ed in the New York Times, for adopting the sentencing
measure without any public debate or study. He wrote that Congress is
attempting to “intimidate judges” and resigned after writing the op-ed. The
intimidation of judges has, in fact, already occurred; the Justice
Department has reportedly threatened to subpoena the sentencing records of
U.S. District Judge James Rosenbaum of Minnesota.
Creating lists of judges and subpoenaing those who issue lower sentences
constitutes an unacceptable interference in the independence of the
judiciary which is a fundamental principle of liberal democracies in
general, and of the United States in particular. Furthermore, access to an
“independent and impartial tribunal” is an important
attribute of a fair trial pursuant to the International Covenant on Civil
and Political Rights to which the United States is a party. When judges
are dissuaded from issuing sentences based upon a consideration of the facts
and the law before them and are instead pushed by the Executive into giving
sentences that they deem excessive, then their independence has been
compromised.
In this regard, we would like to draw your attention to the United
Nations Basic Principles on the Independence of the Judiciary, which
provide that:
Principle 1 “…It is the duty of all government and other institutions to
respect and observe the independence of the judiciary.”
3. The judiciary shall have jurisdiction over all issues of a judicial
nature and shall have exclusive authority to decide whether an issue
submitted for its decision is within its competence as defined by law.
As explained by the former United Nations Special Rapporteur on the
Independence of Judges and Lawyers, Dato’ Param Cumaraswamy,
It is beyond dispute that sentencing in a criminal trial is part of the
judicial process in the same trial. Sentencing therefore is an "issue of a
judicial nature." Hence any law restrictive of this issue must necessarily
violate Principle 3 of the U.N. Basic Principles. A trial court seen to be
a rubber stamp of the legislature in that process cannot possibly be
perceived as independent.
A sentence regime is also undesirable, as it tends to have a racially
discriminatory impact. According to the U.S. Sentencing Commission in 2000,
“blacks are much more likely than whites or Hispanic defendants to
receive heightened mandatory minimum penalties, and the difference in the
likelihood increases as the penalty increases…in 1998 black defendants
comprised only 30 percent of cases subject to a five year mandatory minimum.
However, they comprise over 40 percent of cases subject to a ten-year
mandatory minimum, over 60 percent of cases subject to a 20 year mandatory
minimum, and almost 80 percent of cases subject to a mandatory life terms.”
In this regard, the Convention on the Elimination of Racial
Discrimination that your Government ratified states that,
1. (c) Each State Party shall take effective measures to review
governmental, national and local policies, and to amend, rescind or nullify
any laws and regulations which have the effect of creating or perpetuating
racial discrimination wherever it exists.
Moreover, Article 26 of the aforementioned International Covenant on
Civil and Political Rights provides that,
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
The U.N. Committee on the Elimination of all Forms of Discrimination
has also voiced its criticism of minimum mandatory sentencing schemes for
their negative effect on minorities. Vis-à-vis Australia, the Committee
stated,
The mandatory sentencing schemes appear to target offences that are
committed disproportionately by indigenous Australians, especially
juveniles, leading to a racially discriminatory impact on their rate of
incarceration. The Committee seriously questions the compatibility of these
laws with the State party’s obligations under the Convention and recommends
to the State party to review all laws and practices in this field.” (CERD/C/304/Add.10).
Hence, in light of your Government’s obligations under the Convention
on the Elimination of Racial Discrimination, there is an affirmative
duty to ensure that the sentencing guidelines do not lead to a racially
discriminatory impact.
We would like to reiterate that imposing minimum sentencing guidelines on
judges without allowing them a modicum of discretion and creating a list of
those who depart from the said minimum guidelines constitutes a grave
infringement upon the independence of the judiciary and jeopardizes the rule
of law.
We therefore urge the Attorney General to revoke the directive for
prosecutors to report judges who fall afoul of the guidelines and we request
that your Government not apply any judicial guidelines in a manner that
would compromise judicial independence or lead to a racially discriminatory
impact.
Please accept the assurances of my highest consideration.
Yours sincerely,
Ernst Lueber
Acting Secretary-General
Cc: H.E. Ambassador Kevin Moley
United States Permanent Mission
Route de Pregny 11
1292 Chambésy
Fax: 022 749 48 80
Mr. John Ashcroft,
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
USA
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PRESS RELEASE
18 August 2003
USA: International
Commission of Jurists Condemns “Blacklisting” of Judges
In a letter addressed to President Bush today, the
International Commission of Jurist’s (ICJ) Centre for the Independence of
Judges and Lawyers (CIJL) expressed its alarm at a recent directive by
Attorney General John Ashcroft to federal prosecutors to report judges who
depart from U.S. sentencing guidelines to the Justice Department. The
Attorney General appears to be aiming to create a “blacklist” of judges.
This directive follows the “Feeney Amendment” - a provision signed by
President Bush into law in April that will pressure federal judges to adhere
to pre-determined federal sentencing guidelines. It will also make it
easier for prosecutors to appeal “downward departures” from the guidelines
even if, in the judge’s discretion, a lower sentence is warranted based upon
mitigating circumstances. The Justice Department has already reportedly
threatened to subpoena the sentencing records of U.S. District Judge James
Rosenbaum of Minnesota.
The Feeney Amendment has been strongly criticized by several US federal
judges, including Chief Justice of the US Supreme Court William Rehnquist.
The American Bar Association, the National Association of Criminal Defense
Lawyers and the US Sentencing Commission also oppose this measure.
“Creating lists of judges and subpoenaing those who issue lower sentences
constitutes an unacceptable interference in the independence of the
judiciary and compromises the right to a fair trial by an independent and
impartial tribunal” said Linda Besharaty-Movaed, ICJ Legal Advisor.
The current measure, which is the brain-child of the Justice Department, was
sponsored by Rep. Tom Feeney and added in the “Amber alert” child protection
legislation that President Bush signed into law in April.
The ICJ/CIJL urged the Attorney General to revoke the directive for
prosecutors to report judges who fall afoul of the guidelines and called
upon the US Government to respect the independence of the American
judiciary.
For more information, please contact Linda Besharaty-Movaed, Legal Advisor,
at 41-22-979-38-09
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