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It doesn’t quite rival Napoleon versus the Duke of Wellington, but it could come close. Defense attorneys in the Northern District are gearing up for a fight over the so-called Feeney Amendments. The phalanx of hastily passed sentencing revisions are soon to be implemented, and lawyers are set to counter the law with legal briefs — mostly likely asking courts to shoot down the reforms as an unconstitutional invasion of the Third Branch. “I’m ready to go make the challenge,” said Larry Kupers, one of Northern District Federal Public Defender Barry Portman’s top deputies. Kupers’ brief is ready. All he needs is a case. President Bush signed the Feeney Amendments — named after freshman Rep. Thomas Feeney, R-Fla. — in April as part of the PROTECT Act , which is aimed at stiffening penalties against pedophiles and others who prey on children. The law eliminates some grounds for downward departures, requires judges to give their reasons for departures in writing, and waters down the influence of federal judges on the U.S. Sentencing Commission. Judges from U.S. Supreme Court Justice William Rehnquist on down have criticized the law. In recent weeks, the Justice Department has given instructions to U.S. attorneys’ offices on how to implement the PROTECT Act. Attorney General John Ashcroft told prosecutors they should oppose downward departures except in rare circumstances and report to Main Justice whenever a judge departs over a prosecutor’s objection. “We expect that they’ll oppose most departures,” Kupers said. Matthew Jacobs, a spokesman for U.S. Attorney Kevin Ryan, declined to say what arguments the office might make, but said any challenges will be met in court. While significant legal battles over the PROTECT Act have yet to take place, the war of words is under way. In a speech at the American Bar Association’s annual meeting in San Francisco earlier this month, Supreme Court Justice Anthony Kennedy urged greater sentencing discretion for the nation’s judges. Congressional opponents of the changes have introduced bills to undo them. One federal judge has even resigned the bench in protest. Another salvo came from Northern District Chief Judge Marilyn Hall Patel — never one to shrink from controversial topics. With judges now required to put their reasons for downward departures in writing, Patel did exactly that — and then some. Surveying the PROTECT Act and another pending sentencing bill, Patel railed against the diminishing influence of the Sentencing Commission, and judges themselves, in meting out punishment. “The wisdom of the years and breadth of experience accumulated by judges and the Sentencing Commission in adjudicating criminal cases and sentencing defendants is shucked for the inexperience of young prosecutors and the equally young think-tank policy makers in the legislative and executive branches,” Patel wrote recently in United States v. Mellert, 03-043. “The judicial branch should not be timid nor fearful of inflicting an occasional whiplash or, where necessary, even imposing chronic pain when Constitutional rights are threatened or the balance of powers is jeopardized.” Word about Patel’s short order, in an otherwise unremarkable case, spread fast. Building on Patel’s themes, defense attorneys say they will try to attack the PROTECT Act with a separation of powers argument — that the “independence, integrity and impartiality” of the judicial branch is at stake, said Kupers. It’s an argument that any federal judge might find tempting. “We’re certainly talking about it,” said Walter Brown Jr., a partner at Orrick, Herrington & Sutcliffe who specializes in white-collar defense work. “I think people are uniformly of the view that it’s an improper invasion of the separation of powers.” The battle may have already been joined. Earlier this month, the Boston-based First Circuit U.S. Court of Appeals handed down United States v. Thurston, 02-1966. If that case is any indication of how courts will view the PROTECT Act, the defense bar has much to worry about. The case was handled locally by Cooley Godward associate Matthew Browne and senior counsel Joseph Russoniello, himself a former U.S. attorney for the Northern District. William Thurston appealed his health care fraud conviction, while the government appealed a downward departure by the district court that resulted in a three-month sentence. Though Thurston was indicted, convicted and sentenced before the passage of the PROTECT Act, the First Circuit asked for briefing on its impact just before oral arguments. The three-judge panel unanimously ruled that it could retroactively apply the PROTECT Act’s de novo sentencing review standard, and faulted the lower court for departing downward. The panel ordered a five-year sentence. The decision, Russoniello said, “couldn’t get any worse.” Russoniello is asking the First Circuit for a rehearing. Even Russoniello, a conservative former prosecutor, is disturbed by Congress’s latest get-tough, law-and-order tactic. “This is a usurpation of the judicial function,” Russoniello said. Other local lawyers are working to challenge the PROTECT Act in other ways. California Attorneys for Criminal Justice has put out the call for examples of worthy downward departures. Those examples are being forwarded to the Sentencing Commission and senators opposed to the Feeney Amendments. “It’s pretty easy to get the stories,” said Swanson & McNamara’s Edward Swanson, who is assisting in that effort, “but it’s not a story that people have been telling.”

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