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Washington-Despite recent criticism by federal judges, including Chief Justice William H. Rehnquist, new limits on the sentencing discretion of judges appear likely to withstand any assaults in Congress this year. Hill-watchers see little sentiment among Republican congressional leaders to revisit the so-called Feeney Amendment, which was designed to reduce what some lawmakers and the Ashcroft Justice Department saw as judges’ increasing use of “downward departures” under federal sentencing guidelines. That doesn’t mean the issue will go away, opponents of the amendment said. A wholesale assault might fail, but a piecemeal attack might prevail, they suggested. Besides many judges, opponents include the American Bar Association and the National Association of Criminal Defense Lawyers (NACDL). “Getting Congress to repeal a law is very hard and particularly when it was a Republican bill in a Republican-controlled Congress,” said Kyle O’Dowd, the NACDL legislative director. The amendment, named for sponsoring Representative Tom Feeney, R-Fla., was enacted last April without hearings, with great dispatch and without input from the Judicial Conference of the United States, the policy-making arm of the federal judiciary. The impetus for the amendment, its backers said, was concern that an increase in downward departures was undermining certainty and uniformity in sentencing. They cited Sentencing Commission data showing that the rate of downward departures had increased from 5.8% in 1991 to 18.3% in 2001. The amendment was attached to the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 (PROTECT Act). It directed the Sentencing Commission to change the guidelines within 180 days to “ensure that the incidence of downward departures are substantially reduced.” Departures A downward departure produces a sentence below the range in the guidelines. A judge may go outside the range if a factor is present that the guidelines did not adequately consider. The amendment barred downward departures in child abduction and sexual assault cases unless the mitigating factor is expressly in the guidelines; prohibited the commission from adopting new grounds for downward departures until May 2005; barred “assistance by the defendant” in either the investigation or his own prosecution as a factor for a downward departure unless requested by government motion; in effect, overruled a 1996 Supreme Court decision requiring “due deference” by federal appellate courts to trial court departure decisions; and limited to three the number of judges on the commission. Judiciary and bar groups said that judicial discretion in sentencing was being severely eroded by the amendment and that the reporting requirements threatened judicial independence. Within 30 days of the entry of judgment, the chief judge of each federal judicial district must send the Sentencing Commission a report on each sentence. If asked, the commission must provide those reports, including the identities of the judges, to the attorney general and both congressional judiciary committees. Some opponents of the reporting provisions call them the “blacklist” provisions. Last October, the commission issued guideline amendments that are now effective. They prohibit departures based solely on the existence of a plea agreement, acceptance of responsibility, a minor role in the offense, gambling addiction and legally required restitution. The commission also limited the availability of departures based on family ties and responsibilities and aberrant behavior. No additional major actions are expected soon, a commission spokesman said. Senator Edward M. Kennedy, D-Mass., and Representative John Conyers Jr., D-Mich., have introduced identical bills in the Senate and the House to repeal the Feeney Amendment. The bills have languished in committee since last May. “It’s not probably realistic to expect we’re going to be able to get those bills through,” a Senate aide said. “Feeney was obviously a House-Administration initiative, but in the end, Senator Hatch went along with the basic ideas. It’s really tough to force a vote on that.” Senator Orrin Hatch, R-Utah, chairs the Senate Judiciary Committee. A GOP reaction It will be even tougher in the House, judging by one leader’s response to Rehnquist’s year-end report on the judiciary. The chief justice said the new law could “intimidate individual judges” as well as harm judicial independence. He charged that the “traditional interchange” between Congress and the judiciary broke down when the lawmakers passed the amendment without hearing from the judiciary. House Judiciary Chairman James Sensenbrenner, R-Wis., saw no such breakdown. “This legislation re-establishes Congress’ original intent for fair and equal sentencing justice throughout the federal judiciary,” he said. “I anticipate an open line of communication with the members of the federal judiciary in the upcoming year on issues of interest such as improving our justice system, judicial misconduct and judicial pay.” Some opponents hope to attack provisions individually. Most pressing, they said, are the reporting requirements. “There are so many Republican-appointed judges speaking out against that provision, as well as the chief justice,” a Senate staffer said. “It’s very possible there may be some kind of judicial blacklist amendment brought to the floor.” If Senate Democrats cannot win Republican support for a bill to end the blacklist provisions, they would have to find an appropriate bill to amend on the floor, a daunting task for the minority party. “There was acquiescence in the Senate on Feeney but not, from what I could tell, enthusiastic support,” said NACDL’s O’Dowd. Even if the Senate agrees to changes, the House seems less likely to. “I would say it looks doubtful we could get serious movement on this side unless we can get the judges more active,” said a Democratic House staffer. The judges are “an important voice,” agreed O’Dowd, though one that House Republicans seem willing to disregard. “I would hope they would keep beating the drum and that the tent would get a little bigger to broaden the support beyond judges and lawyers,” he said. Coyle’s e-mail address is [email protected].

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