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Give federal district judges' sentencing discretion back
By JAMES K. JENKINS
The Atlanta Journal-Constitution: 6/9/03
While America was focused on the opening weeks of the war on Iraq, the U.S. Justice Department had another target in its sights -- a sneak attack on the independence of the 665 federal district judges to determine fair and responsible sentences for people convicted of federal crimes.
Worse yet, it was carried out by exploiting the popular Amber Alert Law, which created a nationwide warning system for abducted children that has already led to one high-profile arrest in Georgia.
The so-called Feeney Amendment was tacked onto the Amber Alert law less than two weeks before it was adopted April 10 by a nearly unanimous Congress. Sponsored by Tom Feeney, a freshman senator from Florida, it has virtually nothing to do with protecting children.
It makes it easier for federal appeals courts to overturn district judges who depart from federal sentencing guidelines. It also reduces the number of federal judges required to sit on the U.S. Sentencing Commission and requires that the attorney general provide to Congress what amounts to a blacklist of judges who depart from the guidelines.
The Justice Department argued the changes were needed to counter the "ad-hoc leniency" of judges who were undermining the Sentencing Commission guidelines by their decisions to give lower sentences in an alarming number of cases. What Justice neglected to inform Congress, however, was that nearly 80 percent of those lower sentences were the result of requests by federal prosecutors on behalf of cooperating defendants and government-sponsored fast-track plea bargaining in immigration cases.
The Feeney amendment begins a process that will marginalize the Sentencing Commission in favor of mandatory sentences dictated by Congress instead of the systematic approach envisioned by the Sentencing Reform Act of 1984. It will significantly increase both the number and length of federal criminal sentences.
Unlike Congress, federal judges know the individual circumstances of both the defendant and the crime. And federal judges are insulated from the ebb and flow of political passions occasioned by notorious criminals and their crimes.
Is it possible to undo the damage? The outcry from the federal judiciary and others in the criminal justice system seems to have been heard. A new bill, appropriately titled the JUDGES Act, was introduced in the Senate and House in late May.
It will specifically require the Sentencing Commission to conduct a study and report to Congress in 180 days on deviations from the sentencing guidelines. With this information, Congress can temperately consider whether there is, in fact, a problem in need of a solution. If there is, Congress should address it without crippling or intimidating the federal judiciary.
This time the Justice Department and its congressional enablers won't have either a war or a child protection act as cover to prevent this important issue from being considered in the light of day, on the basis of accurate facts and bona fide policy considerations.
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