ABA Opposes Subpoena for Judge's Sentencing Records

Here is the American Bar Association's letter that was sent to Congress today protesting the planned subpoena of the sentencing records of Federal Judge James Rosenbaum. We wrote earlier today about the National Association of Criminal Defense Lawyers' (NACDL) Board Resolution opposing such a subpoena. Background on it is here.
March 24, 2003

The Honorable James Sensenbrenner
U.S. House of Representatives
2332 Rayburn House Office Building
Washington, DC 20515

Dear Chairman Sensenbrenner:

On behalf of the 410,000 members of the American Bar Association, I write to express our grave concern about the pending proposal to subpoena Judge James Rosenbaum regarding his sentencing practices. Such a subpoena, to our knowledge unprecedented outside of impeachment proceedings, represents a significant threat to the independence of our judiciary and to the separation of powers doctrine.

If the purpose of this action is to obtain information in furtherance of the Committee's oversight responsibilities with respect to the sentencing guidelines, it would not focus on this one judge. There is a wealth of statistical material available on implementation nationally, most notably from the U.S. Sentencing Commission itself.

If there is a belief this judge has in some manner violated his obligations as a federal judge, a complaint may be filed under the procedures established by Congress when it enacted the Judicial Discipline and Disability Act of 1980.

If there is concern over the outcome in a particular case where a downward departure from the sentencing guideline was imposed, the Department of Justice has the authority to challenge such action in the Court of Appeals.

We are concerned that issuing a subpoena will suggest to all members of our federal judiciary that decisions they make which may be disagreeable to certain Members of Congress will result in their being compelled to appear before Congress to explain themselves. Such an action would be a serious threat to the independence of the Third Branch of our government as envisioned by the Founding Fathers.

We urge you and your colleagues not to issue a subpoena but rather pursue other means to obtain whatever information your Committee may require to carry out its duties.


Alfred P. Carlton, Jr.

cc: Members of the Committee on the Judiciary
The Chief Justice of the United States
The Hon. James Rosenbaum

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