Molly
04-01-2003, 07:22 PM
I have included with this letter a section-by-section analysis of the Feeney Amendment that I prepared this morning. It is by no means comprehensive, but I hope it captures the Amendment's tone, design and predictable impact.
To summarize, the Feeney Amendment is designed to increase the actual
penalties imposed against individuals convicted in federal courts by
strictly limiting or barring federal judges from considering traditional, time-honored and completely legal grounds for allowing sentencing leniency in individual cases. Under the Amendment, first-time, nonviolent offenders must be sentenced without the possibility of mitigation for any positive life circumstance such as military service, community involvement or charitable work. Similarly, a first-time offender's family responsibility cannot mitigate a potential sentence. The proposed legislation, in several instances, prevents a sentencing judge from reducing a sentence unless the government attorney specifically approves the reduction. In order to assure
compliance with the new strictures on sentencing authority, the Feeney
Amendment directs the Attorney General to monitor the conduct of district court judges and to report to the Congress when a federal judge or a local United States Attorney is seemingly out of compliance with the directives of the Amendment.
The legislation also requires wholesale changes in the statutes governing the sentencing appeals process, changes which include overturning longstanding United States Supreme Court precedent. Though ill-positioned and untrained, the Amendment requires appellate judges to second-guess and review the factual underpinnings of every sentencing judge's decision to depart downward from the Sentencing Guidelines. Indeed, the Feeney Amendment disrupts or voids fifteen years of developing sentencing common law under the Sentencing Reform Act. Challenges to its constitutionality are inevitable.
The potential cost of the proposal is staggering. Endless litigation is foreseeable as are inefficiencies related to the cumbersome and chilling reporting mandates of the Amendment. Tens of thousands of individuals sentenced under its provisions will be required to spend additional time in prison at untold cost -- costs well beyond dollars and cents. Thousands of nonviolent first offenders whose crimes beg for an element of compassion in the sentencing decision will be removed from communities and families, producing tragic and wholly unnecessary consequences.
That the Feeney Amendment was passed without input from federal judges, the Sentencing Commission, United States Attorneys or defense counsel should be cause for pause. The absence of balanced input is manifest in the fact that the proposal places no new limits or prohibitions on the authority of a sentencing judge to depart upward from the Sentencing Guidelines. The Feeney Amendment is as unbalanced as it is ill-conceived. It should be eliminated.
SECTION BY SECTION ANALYSIS OF FEENEY AMENDMENT
ANALYSIS
In its first section, the legislation amends 18 U.S.C. § 3553(b) by
requiring that a mitigating circumstance cannot be used to justify a
departure from the Sentencing Guidelines unless it has been "affirmatively and specifically identified as a permissible ground" for departure by the Sentencing Guidelines. This is a sweeping change and eliminates the authority of judges to consider mitigating sentencing factors that are "unmentioned" in the Guidelines. This language may bar or impede the availability of discouraged grounds for downward departure. The effect here is to overrule the governing interpretation of the Sentencing Reform Act as announced by the United States Supreme Court in Koon v. United States. The Sentencing Guidelines have developed with the understanding that sentencing judges have the authority to depart as described in Koon. Thus, the proposed change to 18 U.S.C. § 3553(b) would undo core elements of philosophy and application of the Guidelines, would void more than fifteen years of developing sentencing common law and would denigrate the importance
of a sentencing judge's understanding of a particular case in reaching a sentencing decision.
Interestingly, the amendment to 18 U.S.C. § 3553(b) does not include similar Limitations on a court's authority to consider aggravating information when deciding whether to increase the sentence against an individual.
In its next section, the Feeney Amendment adds emphasis to its distaste for sentencing leniency by the wholesale striking of language from USSG § 5K2.0, the general departure section of the Guidelines, which describes the importance of a judge's "refined assessment of information" in reaching its sentencing decision and the advantage that necessarily falls to district courts in making such decisions as compared to reviewing courts. The "heartland" approach to sentencing decisions, an approach that has been adopted in every federal court in the country, is eliminated in this section. While severely restricting the court's general authority to depart downward under § 5K2.0, this section makes other changes that emphasize that the court continues to enjoy latitude in making a sentencing decision outside the Guidelines so long as the decision is an upward departure.
The next several sections to the Feeney Amendment bar or limit specific
grounds for downward departures. A sentencing judge may no longer consider the youth of an offender in fashioning a sentence outside the Sentencing Guidelines. In illegal reentry cases, "fast track" departures are disallowed unless the Attorney General has certified that a local U.S. Attorney can implement a "fast track" program and the local U.S. Attorney authorizes the sentencing judge to depart downward by way of making a motion for the same. Even when the Attorney General authorizes a local prosecutor to authorize a judge to depart downward in such a case, that departure is limited to 4 levels. Read in conjunction with the rest of the Feeney Amendment, this section will have extraordinary consequences. A vast common law of downward departures has developed in order to ameliorate the inappropriately severe penalties that would befall many individuals under the guidelines applicable in illegal reentry cases. This case law is
eliminated because it depends upon circumstances "unmentioned" by the
Sentencing Commission. Further, local prosecutors who have developed
policies that include misdemeanor dispositions in these cases will be
reported to Congress by the Attorney General for those policies and,
apparently, for sanctioning. Further, the potential cost in dollars of this change is staggering. Thousands of sentences will be doubled, tripled or even quadrupled.
The next section eliminates downward departures based upon "aberrant
behavior." This traditional and important basis for a downward departure has been used in extraordinary cases involving the nonviolent criminal activity of first-time offenders under circumstances which suggest public safety and general deterrence are not compromised by a sentence that does not include imprisonment. This sensible approach gives life to 28 U.S.C. § 994(j) wherein Congress mandated that the Guidelines reflect the inappropriateness of imprisonment in cases involving first-time, nonviolent offenders.
The next sections eliminate entirely a court's ability to consider an
offender's family ties and responsibility and community ties in mitigating a sentencing range. Further, under following sections, a court will no longer be able to consider an offender's military record, civic, charitable or public service record or virtually anything good the individual has done when deciding whether to sentence outside the sentencing range described by the Guidelines. This cavalier deletion of an offender's background in the sentencing equation eviscerates 200 years of sentencing jurisprudence and mocks the Supreme Court's observation that "it has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every
convicted person as an individual and every case as a unique study in human failings that sometimes mitigates, sometimes magnifies, the crime and the punishment to ensue." Koon v. United States, 518 U.S. 81, ___ (1996).
The next section of the Amendment imposes upon sentencing judges the
requirement of producing written reasons for departures, reasons that must be stated with "specificity." Given the volume of sentences imposed throughout the country, the impact on judicial efficiency resulting from this unnecessary burden will be substantial.
The next sections of the Feeney Amendment alter the statutes that govern sentencing appeals. The design of these amendments is twofold. First, the common law development of downward departures will be substantially curtailed. Second, the traditional deference afforded sentencing judges in reaching a sentencing decision is banned. Instead, appellate courts will review de novo sentencing court departure decisions. Beyond eschewing tradition, this change overrules United States Supreme Court precedent. It also places appellate judges in the uncomfortable position of making judgments that go beyond their training and experience.
Because the changes to the sentencing appeal statutes are designed to limit downward departures, the Feeney Amendment includes directions to the sentencing judge upon reversal and remand. This section bars a sentencing judge from granting a downward departure even when reasons for doing so exist if those reasons were not advanced at the first sentencing hearing. Thus, many defendants will be unfairly deprived of the right to raise appropriate grounds for a downward departure upon resentencing in those cases where the court of appeals unexpectedly reverses a sentencing decision of the district court. As a result, this section will require the parties to litigate all potential sentencing issues before the district court even when doing so wastes valuable judicial and prosecutorial resources and retards the efficient administration of justice.
The next section of the Feeney Amendment requires a government motion before a sentencing judge can decrease an offense level by the additional point described in USSG § 3E1.1(b) for pleading guilty and accepting responsibility. This amendment will increase disparity under the Sentencing Guidelines. It is a simple fact that U.S. Attorneys in some districts will be parsimonious in making the required motion and others will not. By increasing disparity, this section violates the intent of the Sentencing Reform Act.
The next section creates additional and redundant work for district courts in supplying and collecting sentencing data. The same redundancy is inflicted upon the Sentencing Commission who must, in turn, report to the Congress.
A series of sections described as "conforming amendments" bar the
Sentencing Commission from promulgating any amendment to the Guidelines that would increase the availability of downward departures for the next two years. The conforming amendments further bar the Sentencing Commission from altering or repealing the new requirements in illegal reentry cases. Nor can the Sentencing Commission alter the new proposal as to the acceptance of responsibility adjustment. These conforming amendments also amend 18 U.S.C. § 3553(a)(4)(A) to require that the Sentencing Commission consider the will of Congress in setting Guideline ranges, even when doing so risks violation of the ex post facto clause to the United States Constitution. Viewed in context, these conforming amendments are a Department of Justice imposed
two-year moratorium on any sentencing legislation or policy that might
result in a reduced sentence.
The final section of the Feeney Amendment directs the Attorney General to monitor and report on use of downward departures in the sentencing decision. The Attorney General must report to the Congress within 15 days setting forth the identity of the sentencing judge and whether or not the downward departure was granted with the concurrence of the government. This section also requires the Attorney General to report to the Congress on the activities of local United States Attorneys, mandating information about whether government counsel resisted the downward departure, whether a motion for reconsideration (no such thing) has been filed or will be filed, and whether the government intends to appeal. The effect of this section will be to chill the exercise of appropriate discretion by both judges and local prosecutors.
CONCLUSION
The Feeney Amendment was attached to HR1104 and afforded 20 minutes of
debate before passed by the House. The insignificant attention paid to this Amendment is inexplicable given the enormity of its predictable impact on the federal criminal justice system. The Amendment, if passed, will denigrate the role of federal district court judges in the sentencing process. Traditional, time-honored and completely appropriate grounds for allowing sentencing leniency in individual cases will be eliminated. The sentencing appeal process will be radically altered and will require appellate judges to question the factual underpinnings of every district court decision to grant a downward departure. Appellate judges are not positioned to make these calls and generally have neither the training nor experience to do so. Substantial control over the sentencing decision is transferred from judges and the Sentencing Commission to the government and
the Sentencing Commission is barred from attempting to alter in the
slightest even the most ill-conceived portions of the Feeney Amendment,
legislation that was adopted by the House without any meaningful debate or input from any entity other than its proponent, the Department of Justice. Neither judges nor local United States Attorneys were invited to participate in dialog related to the Feeney Amendment. In fact, both judges and local U.S. Attorneys will be monitored by the Attorney General and the Congress to assure compliance with the changes wrought by the Feeney Amendment. Without question, tens of thousands of individuals sentenced under its provisions will be required to spend additional time in prison at staggering cost - costs beyond dollars and cents. Thousands of nonviolent first-time offenders whose crimes call for compassion and probation will be removed from communities and families producing tragic and wholly unnecessary consequences.
To summarize, the Feeney Amendment is designed to increase the actual
penalties imposed against individuals convicted in federal courts by
strictly limiting or barring federal judges from considering traditional, time-honored and completely legal grounds for allowing sentencing leniency in individual cases. Under the Amendment, first-time, nonviolent offenders must be sentenced without the possibility of mitigation for any positive life circumstance such as military service, community involvement or charitable work. Similarly, a first-time offender's family responsibility cannot mitigate a potential sentence. The proposed legislation, in several instances, prevents a sentencing judge from reducing a sentence unless the government attorney specifically approves the reduction. In order to assure
compliance with the new strictures on sentencing authority, the Feeney
Amendment directs the Attorney General to monitor the conduct of district court judges and to report to the Congress when a federal judge or a local United States Attorney is seemingly out of compliance with the directives of the Amendment.
The legislation also requires wholesale changes in the statutes governing the sentencing appeals process, changes which include overturning longstanding United States Supreme Court precedent. Though ill-positioned and untrained, the Amendment requires appellate judges to second-guess and review the factual underpinnings of every sentencing judge's decision to depart downward from the Sentencing Guidelines. Indeed, the Feeney Amendment disrupts or voids fifteen years of developing sentencing common law under the Sentencing Reform Act. Challenges to its constitutionality are inevitable.
The potential cost of the proposal is staggering. Endless litigation is foreseeable as are inefficiencies related to the cumbersome and chilling reporting mandates of the Amendment. Tens of thousands of individuals sentenced under its provisions will be required to spend additional time in prison at untold cost -- costs well beyond dollars and cents. Thousands of nonviolent first offenders whose crimes beg for an element of compassion in the sentencing decision will be removed from communities and families, producing tragic and wholly unnecessary consequences.
That the Feeney Amendment was passed without input from federal judges, the Sentencing Commission, United States Attorneys or defense counsel should be cause for pause. The absence of balanced input is manifest in the fact that the proposal places no new limits or prohibitions on the authority of a sentencing judge to depart upward from the Sentencing Guidelines. The Feeney Amendment is as unbalanced as it is ill-conceived. It should be eliminated.
SECTION BY SECTION ANALYSIS OF FEENEY AMENDMENT
ANALYSIS
In its first section, the legislation amends 18 U.S.C. § 3553(b) by
requiring that a mitigating circumstance cannot be used to justify a
departure from the Sentencing Guidelines unless it has been "affirmatively and specifically identified as a permissible ground" for departure by the Sentencing Guidelines. This is a sweeping change and eliminates the authority of judges to consider mitigating sentencing factors that are "unmentioned" in the Guidelines. This language may bar or impede the availability of discouraged grounds for downward departure. The effect here is to overrule the governing interpretation of the Sentencing Reform Act as announced by the United States Supreme Court in Koon v. United States. The Sentencing Guidelines have developed with the understanding that sentencing judges have the authority to depart as described in Koon. Thus, the proposed change to 18 U.S.C. § 3553(b) would undo core elements of philosophy and application of the Guidelines, would void more than fifteen years of developing sentencing common law and would denigrate the importance
of a sentencing judge's understanding of a particular case in reaching a sentencing decision.
Interestingly, the amendment to 18 U.S.C. § 3553(b) does not include similar Limitations on a court's authority to consider aggravating information when deciding whether to increase the sentence against an individual.
In its next section, the Feeney Amendment adds emphasis to its distaste for sentencing leniency by the wholesale striking of language from USSG § 5K2.0, the general departure section of the Guidelines, which describes the importance of a judge's "refined assessment of information" in reaching its sentencing decision and the advantage that necessarily falls to district courts in making such decisions as compared to reviewing courts. The "heartland" approach to sentencing decisions, an approach that has been adopted in every federal court in the country, is eliminated in this section. While severely restricting the court's general authority to depart downward under § 5K2.0, this section makes other changes that emphasize that the court continues to enjoy latitude in making a sentencing decision outside the Guidelines so long as the decision is an upward departure.
The next several sections to the Feeney Amendment bar or limit specific
grounds for downward departures. A sentencing judge may no longer consider the youth of an offender in fashioning a sentence outside the Sentencing Guidelines. In illegal reentry cases, "fast track" departures are disallowed unless the Attorney General has certified that a local U.S. Attorney can implement a "fast track" program and the local U.S. Attorney authorizes the sentencing judge to depart downward by way of making a motion for the same. Even when the Attorney General authorizes a local prosecutor to authorize a judge to depart downward in such a case, that departure is limited to 4 levels. Read in conjunction with the rest of the Feeney Amendment, this section will have extraordinary consequences. A vast common law of downward departures has developed in order to ameliorate the inappropriately severe penalties that would befall many individuals under the guidelines applicable in illegal reentry cases. This case law is
eliminated because it depends upon circumstances "unmentioned" by the
Sentencing Commission. Further, local prosecutors who have developed
policies that include misdemeanor dispositions in these cases will be
reported to Congress by the Attorney General for those policies and,
apparently, for sanctioning. Further, the potential cost in dollars of this change is staggering. Thousands of sentences will be doubled, tripled or even quadrupled.
The next section eliminates downward departures based upon "aberrant
behavior." This traditional and important basis for a downward departure has been used in extraordinary cases involving the nonviolent criminal activity of first-time offenders under circumstances which suggest public safety and general deterrence are not compromised by a sentence that does not include imprisonment. This sensible approach gives life to 28 U.S.C. § 994(j) wherein Congress mandated that the Guidelines reflect the inappropriateness of imprisonment in cases involving first-time, nonviolent offenders.
The next sections eliminate entirely a court's ability to consider an
offender's family ties and responsibility and community ties in mitigating a sentencing range. Further, under following sections, a court will no longer be able to consider an offender's military record, civic, charitable or public service record or virtually anything good the individual has done when deciding whether to sentence outside the sentencing range described by the Guidelines. This cavalier deletion of an offender's background in the sentencing equation eviscerates 200 years of sentencing jurisprudence and mocks the Supreme Court's observation that "it has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every
convicted person as an individual and every case as a unique study in human failings that sometimes mitigates, sometimes magnifies, the crime and the punishment to ensue." Koon v. United States, 518 U.S. 81, ___ (1996).
The next section of the Amendment imposes upon sentencing judges the
requirement of producing written reasons for departures, reasons that must be stated with "specificity." Given the volume of sentences imposed throughout the country, the impact on judicial efficiency resulting from this unnecessary burden will be substantial.
The next sections of the Feeney Amendment alter the statutes that govern sentencing appeals. The design of these amendments is twofold. First, the common law development of downward departures will be substantially curtailed. Second, the traditional deference afforded sentencing judges in reaching a sentencing decision is banned. Instead, appellate courts will review de novo sentencing court departure decisions. Beyond eschewing tradition, this change overrules United States Supreme Court precedent. It also places appellate judges in the uncomfortable position of making judgments that go beyond their training and experience.
Because the changes to the sentencing appeal statutes are designed to limit downward departures, the Feeney Amendment includes directions to the sentencing judge upon reversal and remand. This section bars a sentencing judge from granting a downward departure even when reasons for doing so exist if those reasons were not advanced at the first sentencing hearing. Thus, many defendants will be unfairly deprived of the right to raise appropriate grounds for a downward departure upon resentencing in those cases where the court of appeals unexpectedly reverses a sentencing decision of the district court. As a result, this section will require the parties to litigate all potential sentencing issues before the district court even when doing so wastes valuable judicial and prosecutorial resources and retards the efficient administration of justice.
The next section of the Feeney Amendment requires a government motion before a sentencing judge can decrease an offense level by the additional point described in USSG § 3E1.1(b) for pleading guilty and accepting responsibility. This amendment will increase disparity under the Sentencing Guidelines. It is a simple fact that U.S. Attorneys in some districts will be parsimonious in making the required motion and others will not. By increasing disparity, this section violates the intent of the Sentencing Reform Act.
The next section creates additional and redundant work for district courts in supplying and collecting sentencing data. The same redundancy is inflicted upon the Sentencing Commission who must, in turn, report to the Congress.
A series of sections described as "conforming amendments" bar the
Sentencing Commission from promulgating any amendment to the Guidelines that would increase the availability of downward departures for the next two years. The conforming amendments further bar the Sentencing Commission from altering or repealing the new requirements in illegal reentry cases. Nor can the Sentencing Commission alter the new proposal as to the acceptance of responsibility adjustment. These conforming amendments also amend 18 U.S.C. § 3553(a)(4)(A) to require that the Sentencing Commission consider the will of Congress in setting Guideline ranges, even when doing so risks violation of the ex post facto clause to the United States Constitution. Viewed in context, these conforming amendments are a Department of Justice imposed
two-year moratorium on any sentencing legislation or policy that might
result in a reduced sentence.
The final section of the Feeney Amendment directs the Attorney General to monitor and report on use of downward departures in the sentencing decision. The Attorney General must report to the Congress within 15 days setting forth the identity of the sentencing judge and whether or not the downward departure was granted with the concurrence of the government. This section also requires the Attorney General to report to the Congress on the activities of local United States Attorneys, mandating information about whether government counsel resisted the downward departure, whether a motion for reconsideration (no such thing) has been filed or will be filed, and whether the government intends to appeal. The effect of this section will be to chill the exercise of appropriate discretion by both judges and local prosecutors.
CONCLUSION
The Feeney Amendment was attached to HR1104 and afforded 20 minutes of
debate before passed by the House. The insignificant attention paid to this Amendment is inexplicable given the enormity of its predictable impact on the federal criminal justice system. The Amendment, if passed, will denigrate the role of federal district court judges in the sentencing process. Traditional, time-honored and completely appropriate grounds for allowing sentencing leniency in individual cases will be eliminated. The sentencing appeal process will be radically altered and will require appellate judges to question the factual underpinnings of every district court decision to grant a downward departure. Appellate judges are not positioned to make these calls and generally have neither the training nor experience to do so. Substantial control over the sentencing decision is transferred from judges and the Sentencing Commission to the government and
the Sentencing Commission is barred from attempting to alter in the
slightest even the most ill-conceived portions of the Feeney Amendment,
legislation that was adopted by the House without any meaningful debate or input from any entity other than its proponent, the Department of Justice. Neither judges nor local United States Attorneys were invited to participate in dialog related to the Feeney Amendment. In fact, both judges and local U.S. Attorneys will be monitored by the Attorney General and the Congress to assure compliance with the changes wrought by the Feeney Amendment. Without question, tens of thousands of individuals sentenced under its provisions will be required to spend additional time in prison at staggering cost - costs beyond dollars and cents. Thousands of nonviolent first-time offenders whose crimes call for compassion and probation will be removed from communities and families producing tragic and wholly unnecessary consequences.