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A freshman congressman is trying to force changes that would virtually eliminate any discretion federal judges have left to show mercy on criminal defendants. Tom Feeney, a Florida Republican, quietly attached a rider to the Amber Alert legislation — which had seemed destined for passage before Congress recesses for Easter next week — that would erase many of the grounds for downward departures and require de novo review of sentencing decisions. The move has defense lawyers, the U.S. Sentencing Commission and the Administrative Office of the U.S. Courts, all working feverishly to halt the amendment’s progress. But it has the support of powerful House of Representatives Judiciary Committee Chairman F. James Sensenbrenner, R-Wis., who is spearheading an investigation into departures in federal drug cases. In hailing last week’s vote to add the amendment, Feeney said it would restrict the ability of judges to depart in child pornography cases. “Today the House expressed the need to protect our children from child abductors and pornography offenders,” Feeney said. But the rider is much more than that. For example, the bill would only limit a federal judge’s ability to consider mitigating circumstances. Consideration of aggravating circumstances is left alone. In addition, it would limit departures in “fast track” illegal re-entry cases, require judges who depart in any case to issue written reasons and require Attorney General John Ashcroft to report to Congress any judge who departs and whether it was done with the consent of the government. Federal judges would also turn over all pre-sentence reports, plea agreements, and judgment and sentencing orders to the U.S. Sentencing Commission. The commission in turn would make them available to Congress. Not only would that make the decisions of individual judges subject to political review, but it would also break the confidentiality of highly sensitive pre-sentence reports, which include personal information such as past sexual abuse or drug problems. American Bar Association Chairman Alfred Carlton Jr. wrote to the Senate to object, pointing out that in 2001, 79 percent of downward departures came at the request of the government. Furthermore, the government appealed downward departures in fewer than two dozen cases nationwide in 2001. “To the extent that reforms are undertaken, such reforms should be balanced, deliberate and narrowly tailored to address demonstrable shortcomings,” Carlton wrote. “The Feeney Amendment — far more of a wrecking ball than a scalpel — is none of these things.” The reaction of the U.S. Judicial Conference, which represents the views of federal judges, couldn’t have been stronger. In letters delivered Thursday to the Senate, the Judicial Conference said the revisions “undermine the basic structure of the sentencing system and impair the ability of courts to impose just and responsible sentences.” In the letter, Judicial Conference Secretary L. Ralph Mecham noted that “one of the most fundamental changes” to the sentencing schemes received a grand total of 20 minutes of debate in the House. The Sentencing Commission is also opposing the amendment on procedural grounds. It was notified about the rider (and had to download it off the Internet) the day before it passed by a 6-to-1 margin in the House. Staff members are working furiously to assess the merits of the proposals. “[The commission's] basic concern about the legislation is that it’s had no opportunity to comment about it,” said Timothy McGrath, Sentencing Commission staff director. Northern District Chief Judge Marilyn Hall Patel was dismayed at the lack of debate in Congress. “That tells me they’re not doing their job. They ought to be embarrassed. They ought to hang their heads in shame.” Most thought the overwhelmingly supported Amber Alert bill was slated for passage by Easter recess, though that appears to be optimistic. The bill still needs to go through a conference committee to hammer out any differences in the House and Senate versions. House conference members have already been named, but a spokesman for Sen. Dianne Feinstein, D-Calif., the Amber Alert bill’s sponsor, said he wasn’t aware of any Senate committee appointments. McGrath said he has no way of knowing when the bill might pass. “It’s hard. It’s like reading the tea leaves in Washington,” he said. The National Association of Criminal Defense Lawyers is marshaling forces. Director Lawrence Goldman said the group is looking for allies in Democratic Senators Ted Kennedy and Patrick Leahy, both Senate Judiciary Committee members. Goldman said the amendment is aimed at broadening the power of prosecutors by taking it away from the judges. For example, defendants typically get a three-level departure for accepting responsibility — in other words, pleading guilty. That would drop to two, with the prosecutor having the power to approve the third. Patel thinks prosecutors already have too much discretion — that it belongs in the hands of the judiciary. “What you have are a bunch of young prosecutors without a lot of experience and a bunch of judges with years of experience,” she said. “In a certain sense we’re dealing with turf battles,” Goldman said. “We’re dealing with turf battles between the Congress and the judiciary, and the judiciary and the Department of Justice.” He added: “I know people who will not be federal judges because they don’t want to give horrendous sentences under the guidelines.” The amendment also comes shortly after a dust-up between Sensenbrenner and the Judicial Conference over an investigation into drug case departures in the District of Minnesota. At Sensenbrenner’s request, the General Accounting Office is looking into the matter. Jason Roe, Feeney’s chief of staff, said the new guidelines were written because the overwhelming majority of guideline departures were downward. And he was taken aback by criticism of the amendment. “I guess I am a little surprised,” he said. “It’s not often a freshman lawmaker makes these kind of waves.” The Sentencing Commission itself is looking into departures, which are higher now than when the guidelines were implemented in 1984. McGrath said the rise can be attributed, in part, to judicial districts along the U.S. border that give illegal immigrants light sentences before they are ultimately deported. The study is not complete, however. “The whole purpose of the guidelines was to give reasoned sentences,” Goldman said. “There’s no crisis.”

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