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The national Amber Alert bill awaiting President Bush’s signature didn’t start out as a weapon in the federal government’s war on corporate fraud, but that’s how it may end up being used. And white-collar criminal defense lawyers aren’t happy about it. Local defense lawyers fear that judges will be forced to treat all offenders the same — regardless of extenuating circumstances. That means someone convicted of a white-collar crime that occurs on paper — like accounting fraud that doesn’t result in a financial gain for the individual — will be treated just as harshly as someone who bilked millions from elderly investors and spent the money. A dramatic comparison to be sure, but that’s how Leo Cunningham, a Wilson Sonsini Goodrich & Rosati partner, illustrates the possible effect of the legislation. “It will affect everyone who faces federal sentencing for anything because the catch is that some of the changes that were wrought did not relate to what the Amber Alert bill was about,” Cunningham said. The Amber Alert bill seeks to fund programs nationwide that alert the public of child abductions. However, last-minute amendments introduced by Rep. Tom Feeney, R-Fla. — the so-called Feeney Amendments — seek to impose limits on when judges may deviate from federal sentencing guidelines. Defense lawyers and the American Bar Association, as well as the U.S. Judicial Conference, opposed the amendment because, they say, it too severely limits a judge’s discretion. The spotlight has focused on how the bill will affect people convicted of violent crimes, but as Cunningham points out, individuals convicted for less serious offenses could get caught in the middle. Cunningham also contends the bill asserts congressional oversight where it doesn’t belong. “It’s another example of the tyranny of the majority trying to eliminate one of the last bulwarks for individual liberties, which is an independent judiciary,” Cunningham said. Feeney’s amendments call for the U.S. Sentencing Commission to make it harder for judges to hand out sentences that are lighter than what’s called for in the U.S. sentencing guidelines. The National Association of Criminal Defense Lawyers will try to work with the sentencing commission to preserve judicial flexibility, said Kyle O’Dowd, the organization’s legislative director. “There are some very open-ended and dangerous directives to the sentencing commission,” O’Dowd said. “We intend to play a part in the process and do our best to ameliorate the damage.” How the organization plans to do that is still on the drawing board, he added. Amended in late March, the Amber Alert bill cleared the House and Senate on April 10, so opponents haven’t had much time to strategize, he said. Most concerns center on judges retaining the discretion to deviate from the federal guidelines; and in practice, about 80 percent of requests that judges do so come from prosecutors, O’Dowd said. Judges who deal with undocumented immigrants often hand out lighter sentences to people who plead guilty just before being deported to speed up the process, he said. Judges also at times hand out lighter sentences to people who cooperate with prosecutors, O’Dowd said. Lobbying will be “a process of countering the Department of Justice anecdotes and attempts to show that departures are rampant,” he said. “We know that’s not the case.”

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