Thank you for sharing!

Your article was successfully shared with the contacts you provided.
“The general message is, ‘We think you guys are being too soft on these terrible people. Lock ‘em up,’” says one federal judge. “The thing that concerns me,” says another jurist, “is this principle that Congress is starting to eliminate the district judge’s power to depart downward.” Adds a third judge: “It’s saying, ‘We don’t trust you district judges.’” Judges are beginning to voice their opinions on a law Congress passed earlier this month that will restrict judicial discretion in sentencing criminals. Most are decrying the move. Quietly tucked into a politically popular child protection bill in the House of Representatives, it produced brief debate on Capitol Hill before passage in both chambers earlier this month. President George W. Bush has been expected to sign it into law this week. “We can’t do anything about it,” says yet another federal judge. “The judiciary is toothless.” The legislation grew out of a perception on Capitol Hill that judges too often impose sentences more lenient than those set by federal guidelines. One of the new rules effectively repeals a key element in the 1996 Supreme Court case Koon v. United States. That case directs appeals courts to defer to how a trial judge applied the law to the facts of a particular case, rather than review it de novo, as the new law mandates. The new measure also requires the Justice Department to report all downward departures to Congress, and it gives the DOJ access to U.S. Sentencing Commission files that identify each judge’s departure practices. The legislation eliminates judges’ power to adjust a sentence based on a defendant’s extraordinary acceptance of responsibility without a government motion, and directs the Sentencing Commission to amend the guidelines to decrease the incidence of downward departures. The bill also establishes a mandatory life sentence for twice-convicted child sex offenders. And in what many judges say is a gratuitous slap, the law aims to curtail the bench’s input on the Sentencing Commission. The judiciary had been allowed at least three seats; now it gets no more than three. What’s curious about the legislation’s focus, say judges and others who have examined sentencing issues, is that prosecutors rarely contest downward departures. According to the Sentencing Commission, in 2001, the last year for which complete nationwide statistics are available, federal judges imposed 54,851 criminal sentences. In 10,026 of those, judges imposed terms shorter than those called for in the sentencing guidelines, not including cases where prosecutors requested shorter terms to reward a defendant’s “substantial assistance” to law enforcement. Prosecutors appealed only 19 of those 10,026 sentences — and 16 were reversed. So why the push to limit them? For one thing, the Justice Department has been fighting the Koon decision for years. Justice Anthony Kennedy wrote the 1996 opinion and Chief Justice William Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, and Clarence Thomas — the Court’s most consistent conservative jurists — joined. But it found few fans among prosecutors because it made it more difficult to appeal downward departures. “One could expect and hope that as we look at downward departures going forward under a de novo standard, we will have greater confidence that we can take a case up and that will increase our rate of appeal,” says one Justice Department official. “And I think departure behavior is going to be affected by this act,” he adds, noting that judges will be less likely to lower sentences. Many judges agree. And it rankles. “Underlying this whole thing is a further transfer of power from the judge to the prosecutor,” says one federal trial judge. The statute “makes it much harder for the trial judge to justify a departure,” says University of Chicago Law School Professor Abner Mikva, a former chief judge of the U.S. Court of Appeals for the D.C. Circuit. “Trial judges don’t like being reversed, and the best way not to be reversed is not to depart.” The net result, critics of the legislation say, is that judges will feel compelled to sentence within the guidelines even when they strongly believe a more lenient sentence is justified. “De novo means we would look at it completely fresh and would not give any weight to what the sentencing judge had done,” explains Senior Judge Richard Arnold of the 8th Circuit. “There will be fewer downward departures affirmed under that standard,” he predicts. He gives the example of an offender who has rehabilitated himself and changed his manner of life since committing the crime for which he is being sentenced — either for the first time, or on remand from an appellate court. “Normally, that isn’t a factor to be considered by the sentencing court, but if it’s present to an unusually high degree, it could be considered,” Arnold says. “Under the new standard, the review would be more stringent in the sense that the Court of Appeals wouldn’t be so inclined to accept the District Court’s assessment of the change of heart and life.” An appellate judge who opposes the changes opines that it is the trial judge, not an appellate panel, that “can do a better job of understanding the real life circumstances of a case,” but the new rules seek to “strip away the judge’s ability to make a downward departure.” Another aspect of the legislation causing considerable consternation in the judiciary is the provision that requires a government motion before a judge may adjust a sentence based on a defendant’s extraordinary acceptance of responsibility. “That’s a mistake,” says one trial judge. “It’s a mistake because the court is in the position of weighing the evidence and the plea and determining whether the offender has accepted responsibility for his or her actions. And that one point can make a huge difference in the sentence imposed. The sentence can be three to nine months more for one point.” The Justice Department official says this issue is one the DOJ had been urging the Sentencing Commission to address for “several years.” It is intended, he says, to encourage defendants to plead guilty early enough in the process to save the government the time and expense of preparing for trial. Defendants who plead guilty on the day of trial shouldn’t get the adjustment, the reasoning goes. “If you plead guilty early enough, you’re showing an extra measure of acceptance that should be acknowledged,” he says. The trial judge disagrees. “It is a vital part of the judge’s tool set in structuring sentencing to have the ability to determine whether the person gets [a point] for the acceptance of responsibility,” he says. “The prosecutors already have control over the sentence range by the charging decision and by the decision they make of whether or not to plea bargain. This is an unwarranted transfer of resources.” Of course, the death of the Koon decision is not mourned by all judges. Judge Alex Kozinski of the 9th Circuit declined comment on the legislation. In a 1999 article he wrote for the Federal Sentencing Reporter, though, Kozinski called for the toppling of Koon, writing that in “attempting to give district judges some wiggle room to depart in extraordinary cases, Koon gave away the store.” Few, if any judges, take issue with increased reporting requirements or with the tracking of individual judges’ downward departure records. Most judges record their reasoning for a sentence anyway, and as one judge says of the departure tracking, “What are they going to do? We have lifetime tenure.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.