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Second Effort

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Views on how federal sentencing guidelines should be applied are running in opposite directions these days.

On the one hand, U.S. Chief Justice William H. Rehnquist and at least some other members of the Supreme Court, the U.S. Judicial Conference, many prosecutors and defense attorneys, as well as the ABA, among others, favor giving judges flexibility in applying sentencing guidelines.

In a speech in August at the 2003 ABA Annual Meeting, for instance, Justice Anthony M. Kennedy said prison sen­tences are too long, mandatory minimum sentences should be repealed, and sentencing guidelines should be reconsidered. Responding to Kennedy’s speech, ABA President Dennis W. Archer of Detroit created the Justice Kennedy Commission to study various issues relating to sentencing and the nation’s growing prison population.

Meanwhile, however, a 2003 measure enacted by Congress put more teeth into the sentencing guidelines by reducing the power of judges to depart from them. The provision, known as the Feeney Amendment for its sponsor, Rep. Tom Feeney, R-Fla., was a late addition to the PROTECT Act, which targets crimes against children. The Feeney Amendment contains a broad directive that the U.S. Sentencing Commission pass rules to “substantially reduce” downward departures from the sentencing guidelines by U.S. district court judges.

Another key provision in the Feeney Amendment imposes a de novo standard of appellate review of downward departures in sentences. In effect, that provision overturns the Supreme Court’s ruling in Koon v. United States, 518 U.S. 81 (1996). In Koon, the court affirmed the power of district court judges to impose sentences outside the federal guidelines and limited appellate review of those sentences.

Repeal Efforts Under Way

Opponents of the Feeney Amendment say it restricts the flexibility of judges under the Sentencing Act of 1984. That act created the U.S. Sentencing Commission and empowered it to develop guidelines for judges to follow in specific cases. But the guidelines also permit judges to depart from the guidelines in cases in which “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.”

Alfred P. Carlton Jr., who preceded Archer as ABA president, sent a letter to federal lawmakers prior to the Feeney Amendment’s adoption that expressed the ABA’s concerns about the measure. “By curtailing and burdening judicial departure authority, the Feeney Amendment strikes a blow at judicial independence and sends an unmistakable message that Congress does not trust the judgment of the justices it has confirmed to office,” wrote Carlton of Raleigh, N.C.

Identical bills seeking to repeal certain provisions of the Feen­ey Amendment have been introduced in the Senate by Edward M. Kennedy, D-Mass. (S. 1086), and in the House by John Conyers Jr., D-Mich. (H.R. 2213). The bills also would direct the Sentencing Commission to con­duct a comprehensive study and report to Congress within 180 days on the incidence of downward departures from the sentencing guidelines.

The ABA and the U.S. Judicial Conference are among the supporters of the bills. While Congress deliberated, the Sentencing Com­mis­sion published amendments to its guidelines in October reflecting the Feeney Amendment’s requirements for limiting downward departures from sentences. And U.S. Attorney General John Ashcroft in July ordered U.S. attorneys around the country, pursuant to another provision in the amendment, to report all incidences in which federal judges impose lighter sentences than those called for in the sentencing guidelines.

Rhonda McMillion is editor of Washington Letter, an ABA Governmental Affairs Office publication. This article discusses advocacy efforts by the ABA relating to issues being addressed by Congress and the executive branch of the federal government.

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