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The latest volleys in a revolt by federal judges against a law that reduces their discretion in sentencing have been fired by two jurists in Brooklyn, N.Y., and Pittsburgh. In Brooklyn, Senior U.S. District Judge Jack Weinstein declared that he will videotape all of his sentencing hearings. He asserted that appeals courts should see who they are sentencing so that they can apply those “many tangible and intangible factors” that don’t appear in a transcript. In re Sentencing, No. Misc. 04-0024 (JBW). It is an attempt to personalize cases subject to the controversial “Feeney Amendment,” which further limits federal judges from exercising their discretion to depart downward from the federal Sentencing Guidelines. Weinstein will make the tapes available to the 2d U.S. Circuit Court of Appeals. Among its other provisions, the “Feeney Amendment” requires that circuit courts of appeal review, de novo, departures from the Sentencing Guidelines if the departure is made without the U.S. attorney’s consent. A resignation In Pittsburgh, U.S. District Judge Robert Cindrich has resigned from the Western District of Pennsylvania bench. He said his resignation was triggered, in part, by the Feeney Amendment and its precursors, which prevent judges from meting out sentences that fit the facts of a particular crime and its surrounding circumstances. Cindrich said he supports Weinstein’s videotape order. “Everybody should be forced to witness the dehumanizing effects of sentencing a person under these guidelines,” said Cindrich, now chief legal counsel for the University of Pittsburgh Medical Center. “It’s not only dehumanizing to the person being sentenced, but to everybody in the room.” Cindrich is not the first judge to leave the bench over the sentencing guidelines. John S. Martin Jr. resigned last year from the Southern District of New York. Martin, now of counsel at New York’s Debevoise & Plimpton, said that it’s “critical for a de novo review that the court of appeals has the ability to assess all the factors that go into a judge’s sentencing decision. “Very often, it’s not what the defendant says, but an assessment of defendant’s sincerity derived from personal observation that can be critical,” he said. The office of Attorney General John Ashcroft did not return calls for comment. Since its passage, opposition to the amendment has come from the Judicial Conference of the United States, the U.S. Sentencing Commission, the American Bar Association and others. Many judges have bridled at its provisions in court and in other public forums. Before the new law, appeals courts had the discretion to review sentence departures but gave deference to the sentencing judge, overturning sentences only for abuse of discretion. Under the new law, review is mandatory and de novo, as if the defendant had not previously been sentenced. Weinstein will record prosecution and defense witnesses, victims, family members of defendants and victims, counsel and others who assist the court in sentencing. He noted that since most cases involve drug offenses, no victim appears in court. Weinstein denied that his order was meant to be provocative. “I’m trying to conform to the statute and assist the court of appeals in doing what it was required to do under the statute,” he said. Sentencing scholar Myrna S. Raeder, a professor at Los Angeles’ Southwestern University School of Law, said Weinstein has been “one of the most vehement opponents of the sentencing guidelines” because it takes away judges’ discretion in sentencing. “And he is far from alone,” she said. Guilty pleas The Weinstein memo notes that 95% of criminal cases are disposed of through guilty pleas and that district court judges are uniquely qualified to pass sentence. “The modern judge . . . spend[s] far more time with the Sentencing Guidelines Manual than the Federal Rules of Criminal Procedure,” the memo said. A review of the Web-site biographies of 244 sitting justices on the 12 circuit courts of appeal reveals that less than half of the justices have federal criminal sentencing experience. Only 95 of them are former U.S. district court judges. Weinstein wrote that the grounds for departure are “often based on a mix of circumstances, some of which are readily observable by the court. “The defendant’s words, his facial expressions, and body language, the severity of any infirmity, the depth of his family’s reliance, or the feebleness of his build cannot be accurately conveyed by a cold record,” Weinstein wrote. Post’s e-mail address is [email protected].

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