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Vol. 35, Number 8—August 2003 Downward Departures Debate Continues n April 30, 2003, the President signed into law the "PROTECT Act," P. L. No. 108-21). Provisions in the act restrict the use of downward departures in child kidnapping and child sex offense cases. The Act also reverses the Supreme Court's determination in Koon v. United States, that provides for a due deference standard of review of a sentencing judge's application of the guidelines. It requires the courts of appeals to review de novo all such departures. The Act bars the U.S. Sentencing Commission from promulgating additional grounds for downward departures until May 1, 2005, and reduces the number of judges on the Commission. The Sentencing Commission also is required, within 180 days of enactment, to modify the guidelines and policy statements to "substantially reduce" the number of downward departures in all cases. The following are some views expressed on this issue. "... This court and every court ought to give due deference to the sentencing decisions of the district judge. However, the Sentencing Guidelines and other changes limit the discretion of the district judge. This does not mean that sentencing disparities have been eliminated or that injustice does not exist, because it does. What it has come to mean is that much of the discretion in sentencing decisions unfortunately falls to persons far less qualified to judge an offender than the district judge. While we say the district judge sentences the offender, in fact, the prosecutor, as I have shown in a number of opinions, often has more input into the sentence to be imposed than does the district judge. The sentencing process also can become mechanical when a probation officer figures out the mathematical aspects of what constitutes a sentence under the guidelines... For a fair and proper sentencing procedure some discretion should be under the aegis of the sentencing judge." United States v. Flores, 336 F. 3d 760 (8th Cir. 2003) (Bright, J. concurring) "An already difficult situation has been made worse, by Congress's recent passage of certain provisions in what is called the PROTECT Act of 2003... It is not my position to criticize Congress. I simply point out that this enactment will exacerbate the problems with the Guidelines by making it even more difficult for district judges to do justice under the law as circumstances warrant ..." United States v. Flores, 336 F. 3d 760 (8th Cir. 2003) (Bright, J. concurring) "I would suggest... that what we are doing here is not eliminating the ability of judges to depart from the sentencing guidelines; we are preserving their right and asking them to explain why they did so." Representative Tom Feeney (R-FL) Congressional Record, April 10, 2003 "Earlier this year, the House Republicans saddled the bipartisan, non-controversial AMBER Alert bill with numerous unrelated and ill-conceived provisions, collectively known as the "Feeney amendment," that effectively overturned the basic structure of the carefully crafted sentencing guideline system. At the time, we were warned by distinguished jurists that these provisions would irrevocably harm our sentencing system and compromise justice... Despite such objections, and without any serious process in the House or Senate, these provisions were pushed through conference with minor changes and enacted. We are now beginning to witness the far-reaching impact of this folly. Not only have we compromised the sentencing system, but we have alienated and minimized the effectiveness of our federal judges, prompting at least one to announce early retirement." Senator Patrick Leahy (D-VT) Congressional Record July 09, 2003 "This amendment is important because it limits judges' ability to depart from sentencing guidelines for more lenient sentences for convicted felons in cases involving crimes against children. It will also allow prosecutors to appeal light sentences in cases where there is not a compelling reason for that lighter sentence." Representative Tom Feeney (R-FL) News Release, April 10, 2003 "When I became a federal judge, I accepted the fact that I would be paid much less than I could earn in private practice; judges make less than second-year associates at many law firms, and substantially less than a senior Major League umpire. I believed I would be compensated by the satisfaction of serving the public good—the administration of justice. In recent years, however, this sense has been replaced by the distress I feel at being part of a sentencing system that is unnecessarily cruel and rigid... . ... Congress's most recent assault on judicial independence is found in amendments that were tacked onto the Amber Alert bill, which President Bush signed into law on April 30. These amendments are an effort to intimidate judges to follow sentencing guidelines... ... Every sentence imposed affects a human life and, in most cases, the lives of several innocent family members who suffer as a result of a defendant's incarceration. For a judge to be deprived of the ability to consider all of the factors that go into formulating a just sentence is completely at odds with the sentencing philosophy that has been a hallmark of the American system of justice. When I took my oath of office 13 years ago I never thought that I would leave the federal bench. While I might have stayed on despite the inadequate pay, I no longer want to be part of our unjust criminal justice system." Judge John S. Martin Jr. Let Judges Do Their Jobs New York Times, June 24, 2003 "Current law requires judges to sentence a defendant within the sentencing guideline range, which was calculated to take account both of the seriousness of the offense and the individual characteristics of the defendant. Judges are permitted to depart above or below the range for circumstances, which the U.S. Sentencing Commission, which promulgates the guidelines, had not considered. The Feeney amendment preserves the commission's ability to consider and promulgate such departure grounds so that courts can apply them uniformly. Recent downward departure practices, based upon the whim of individual judges, threatened to return federal criminal sentencing to the rampant disparity which existed prior to the implementation of the guidelines. The Feeney amendment restores that original congressional intent, an action that was long overdue." Representative Tom Feeney Broward Daily Business Review April 28, 2003 "I want to conclude by making a plea to the district judges of this country who feel that they should have some say and some discretion in sentencing. Let your opinions disclose your views about the injustice of the sentencing decision or decisions you are obligated to impose by Congressional mandate and/or the Sentencing Guidelines." United States v. Flores, 336 F. 3d 760 (8th Cir. 2003) (Bright, J. concurring) "We can all recognize that Congress has a legitimate interest in obtaining information which will assist in the legislative process. But the efforts to obtain information may not threaten judicial independence or the established principle that a judge's judicial acts cannot serve as a basis for his removal from office ... Congress has recently indicated rather strongly, by the Feeney Amendment, that it believes there have been too many downward departures from the Sentencing Guidelines. It has taken steps to reduce that number. Such a decision is for Congress, just as enactment of the Sentencing Guidelines nearly twenty years ago was... . There can be no doubt that collecting information about how the sentencing guidelines, including downward departures, are applied in practice could aid Congress in making decisions about whether to legislate on these issues. There can also be no doubt that the subject matter of the questions, and whether they target the judicial decisions of individual federal judges, could amount to an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties. We must hope that these inquiries are designed to obtain information in aid of the congressional legislative function and will not trench upon judicial independence." Chief Justice William H. Rehnquist Remarks to the Federal Judges Association Board of Directors Meeting May 5, 2003

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