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Apparently, the prosecutors in the U.S. Department of Justice and their allies in our single-party government do not feel that judges should have as much power as they have. The prosecutors already decide who to charge, what to charge, what plea to accept and, increasingly, what the sentence, or at least sentencing range, is. Four out of five downward departures from the Sentencing Guidelines are requested by prosecutors. But the one out of five that a judge imposes without their agreement bothers them. They want to eliminate or greatly curtail these departures.
The Feeney Amendment, passed by Congress in April, is part of the new war on the judiciary (which includes the proposed congressional subpoena to Chief Judge James Rosenbaum of Minnesota). Tom Feeney (R-FL) is a glib, tough-talking, first-term congressman from the Orlando area. In March, NACDL Legislation Director Kyle O’Dowd and I met with him to discuss the Innocence Protection Act. Congressman Feeney said that of course he believed that innocent people should not be convicted and that prisoners who make a showing of possible innocence should have access to DNA testing, but he was concerned about the balance of power between the federal government and the states and did not like the federal government dictating to the states.
Representative Feeney, apparently, is not as concerned about the balance of power between the Legislative and Executive Branches on the one hand and the Judicial Branch on the other, and does not seem to mind the two branches dictating to judges.
The Feeney Amendment was a sneak attack, a rider added just before the House vote on the Amber Alert bill, which created a national notification system to find abducted children. There was no public hearing, no notice to the judiciary, the bar, the Sentencing Commission or other interested parties, and no debate. A vote against Amber Alert would have been like a vote against motherhood and few legislators were willing to have to defend such a vote to their constituents. The amendment, as part of the bill, passed with little notice, except for the watchful eyes of O’Dowd and NACDL member Ron Weich of the Leadership Conference on Civil Rights. They and their organizations brought public attention to the bill before it went to conference with the Senate, which had passed its own Amber Alert bill without any provisions relating to the Sentencing Guidelines.
Other organizations and some newspapers weighed in against the bill — the American Bar Association, the Judicial Conference, The New York Times and The Washington Post among them. Even Chief Justice Rehnquist was moved to write against the bill, saying that it would “do severe harm to the basic structure of the Sentencing Guidelines system and . . . seriously impair the ability of courts to impose just and reasonable sentences.”
Orrin Hatch (R-UT), chair of the Senate Judiciary Committee, was the deciding Senator regarding what, if any, modifications to the Feeney Amendment would be made in the final Amber Alert bill submitted to both chambers. At the conference committee meeting, Senator Hatch announced that a “compromise” had been reached — that the limitations on downward departures would only be directed to serious crimes against children and sex crimes. The conference version did not, he said, “broadly apply” to other crimes, as did the original amendment.
Apparently, the Senator misspoke. The provisions that came out of the conference were virtually identical to the original Feeney Amendment. Fortunately, O’Dowd and Weich caught this and brought it to the attention of Senators Pat Leahy (D-VT) and Ted Kennedy (D-MA), who complained vociferously to Hatch. Well after midnight, a revised real “compromise” bill came out.
The revised bill, passed by both chambers a few days later, still erodes judicial sentencing discretion. Its downward departure prohibitions are limited to child-related and sex offenses (and the proposed ban on downward departures for extraordinary military service was eliminated). It does, however, across the board, require a government motion for the one-point additional downward adjustment for early acceptance, it includes burdensome reporting requirements on judges who depart, and it requires de novo appellate review of departures. But perhaps most ominously, it directs the Sentencing Commission, within 180 days, to amend the Guidelines and policy statements “to ensure that the incidence of downward departures are [sic] substantially reduced.”
I do not know what the Sentencing Commission will do. I do expect that it will do something to limit downward departures further. The Sentencing Commission is composed of decent and conscientious members who (although we defense lawyers disagree with much of what they do) are attempting to achieve a rational, workable and fair sentencing structure. They have, however, the swords of Congress at their necks.
The NACDL, along with other organizations, has asked the Commission to undertake a comprehensive review not only of downward departures but also of those Guidelines which are so unjust or ill-suited that they lead judges to grant downward departures. We have asked the Commission to hold public hearings and solicit input from judges, defense attorneys and probation officers as well as prosecutors.
We must also ask Congress to reconsider these issues on the merits in a reasonable and considered process with input from the appropriate parties. The manner in which the Feeney Amendment was enacted revealed our legislative process at its very worst. These issues are too important to our criminal justice system and the separation of powers to be decided in such a hurried, thoughtless manner.
