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86 Judicature 276 (2002-2003)
Three Branches, Not Two: Congress Should Reconsider Recent Assults on Federal Court Sentencing Discretion

handle is hein.journals/judica86 and id is 276 raw text is: itorial Three branches, not two: Congress should reconsider recent assaults on federal court sentencing discretion Recently enacted legislation that will severely limit the ability offederaljudges to depart downward from the sentencing guidelines in some cases is a big step in the wrong direction, exceeded in its lack of respect for the judiciary only by a House investigation of an individual federal judge's sentencing practices. O n April 30, President Bush signed the so-called Am- ber Alert bill, a popular piece of legislation in- tended to create a national communications system to help recover abducted children. The law includes provi- sions that will curtail the ability of federal judges to de- part downward from the sentencing guidelines in cases where they conclude that circumstances justify such a departure. Those provisions were added in a stealth amendment, which was introduced by Tom Feeney, a freshman congressman from Florida, but sponsored by the Justice Department, that the House of Representa- tives adopted without hearings and with only very limited debate. Even more troubling, however, is the fact that it was adopted without seeking the input of either the federal judiciary or the United States Sentencing Commission. In fact, upon learning of its existence, both opposed it. Notwithstanding their expressed concerns, the amend- ment emerged from conference revised but still prob- Editorials are prepared by a committee of the American Judicature Society appointed by the president. 276 Judicature Volume 86, Number 6 May-June 2003 lematic, and the conference bill was passed over- whelmingly by both houses of Congress shortly after the recovery of Utah teenager Elizabeth Smart. Even members who opposed the amendment voted for the bill. The adoption of the Feeney Amendment followed a threat by a House committee to subpoena documents concerning the sentencing practices of Chief Judge James Rosenbaum of Minnesota. In May 2002, Judge Rosenbaum, a former prosecutor who was appointed by President Reagan, testified in opposition to a bill that would have reinstated tougher sentences for first- time drug offenders. That testimony evidently upset committee Republicans, and a year later, notwith- standing numerous efforts to defuse the situation, Judge Rosenbaum remains under the cloud of a House investigation. The Sentencing Commission was created by the Sen- tencing Reform Act of 1984, which established a system of guidelines intended to enhance fairness in sentencing by avoiding unwarranted disparities among similarly situ- ated defendants. The act also instructed the Sentencing Commission to include provisions that would permit judges to impose individualized sentences when called for by mitigating or aggravating factors not otherwise taken into account, through downward or upward depar- tures from a guideline sentence. The Feeney Amendment has upset the balance struck by Congress in 1984 between sentencing uniformity and individualized justice. As ultimately passed, the legisla- tion will, among other things, limit the number of fed- eral judges who can serve on the Sentencing Commis- sion; eliminate the ability of judges to depart downward when sentencing in child abduction and sexual assault cases unless the mitigating circumstance is expressly set out in the guidelines; prevent judges, when sentencing for any crime, from departing downward because of as- sistance by the defendant in either the investigation or his own prosecution unless the government files a mo- tion requesting such a departure; overrule a 1996 Su- preme Court decision holding that the federal appellate courts must give due deference to trial court departure decisions; prohibit the Sentencing Commission from adopting any new grounds for downward departure until May 2005; require the chiefjudge of each district to sub- mit to the Sentencing Commission a detailed report on each sentence imposed byjudges in the district within 30 days of entry of judgment; and require the Sentencing Commission, upon request, to make available to the House and Senate Judiciary Committees and the Attor- ney General the sentencing reports (including the iden- tity of the sentencing judge) and any other records re- ceived from courts. We do not question Congress' power to pass this legis- lation, although its reporting provisions are extremely troublesome from the perspective of separation of pow- ers. We do, however, question its wisdom in doing so. (continued on page 324)

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