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At a hearing of the U.S. Sentencing Commission on Aug. 19, the federal judiciary formally voiced its opposition to a directive from Congress that the panel reduce the number of “downward departures” in criminal sentencing. Under a measure passed last spring, the commission must change the sentencing guidelines by Oct. 27 in a way that would give judges less discretion in sentencing — cutting in on their opportunities to reduce sentences below the recommended range in the guidelines. The directive, known as the Feeney Amendment, after Rep. Tom Feeney (R-Fla.), was passed with strong support from the Justice Department and signed into law by President George W. Bush, but most federal judges oppose it. At the hearing, U.S. District Judge David Hamilton of the Southern District of Indiana testified on behalf of a committee of the Judicial Conference of the United States that downward departures are “critical” in federal sentencing and that the commission should preserve individual judges’ discretion “to the fullest extent possible.” “By using highly selective data on a low number of emotionally charged cases accompanied by anecdotes containing selective recitations of the facts from carefully selected cases, an argument has been made that downward departures are overused,” Hamilton told the commission. “Those advancing this argument suggest that judges are abusing their departure authority. This is not true.” But William Mercer, U.S. attorney for the District of Montana, testifying on behalf of the Justice Department, told the commission pointedly that “although several commentators in essence encourage the commission to defy Congress, we are confident that you will not accept that unhelpful invitation.” Commission Chair Diana Murphy said at the hearing, “We have a daunting task and very limited time to respond. We will do our best to respond in the best way we can.”

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