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Declaring that congressional restrictions on judicial discretion in sentencing were hastily passed without consultation, the policy-making body of the federal judiciary launched a counterattack Tuesday, calling for repeal of the legislation. The Judicial Conference of the United States voted for a repeal of key provisions of the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003, saying the “new law severely limits the ability of trial judges to depart from the Sentencing Guidelines and requires reports to Congress on any federal judge who does so.” The Judicial Conference, voting at its biannual meeting in Washington, D.C., took aim at several measures in the PROTECT Act, particularly the so-called Feeney Amendment, which tightens the already circumscribed power of federal judges to depart downward from the guidelines’ recommendations and outlines reporting requirements that judges view as an attack on their independence and a breach of the separation of powers. Judge Carolyn Dineen King of the 5th U.S. Circuit Court of Appeals addressed the media following the call for repeal. She said the problems went beyond matters “of process and ceremony.” “There just wasn’t enough spadework done by Congress,” King said. “It’s not clear that there was any need for the bill, or that Congress had enough information to make an informed decision.” First on the list of objections to the bill in a statement released by the Judicial Conference was a plea for the repeal of a directive to the U.S. Sentencing Commission to provide the House and Senate Judiciary committees with what the conference said were “all underlying documents and records it receives from the courts” on criminal sentences “without established standards on how these sensitive and confidential documents” will be handled. In addition, the judges want Congress to repeal the Feeney Amendment provision directing the Sentencing Commission to release files containing “judge-specific information to the Attorney General.” And they oppose the provision requiring the Justice Department to give the Judiciary committees judge-specific downward departure information. The judges also want the repeal of a mandate that the Sentencing Commission develop guidelines and policy statements to limit downward departures as well as the authority of courts and the U.S. Attorneys’ Offices to implement early disposition programs. On the last measure, the Sentencing Commission is charged with proposing amendments by Oct. 27 after a comment period in which the Federal Bar Council in New York and other groups criticized the increasing tendency to take sentencing authority away from judges. Finally, the Judicial Conference seeks the repeal of a measure limiting to three the number of judges on the Sentencing Commission. The commission has seven voting members and two non-voting, ex officio members: the U.S. attorney general and the chairman of the U.S. Parole Commission. The Judicial Conference, a 27-member body headed by Supreme Court Justice William Rehnquist, includes the chief judges of the U.S. Courts of Appeal and a district judge appointed for a minimum of three years from each circuit. Chief Judge John M. Walker Jr. represents the 2nd Circuit along with Northern District of New York Chief Judge Frederick J. Scullin Jr. The Judicial Conference statement said the PROTECT Act was “fast-moving legislation,” that was “signed by the President in just over 30 days,” without input from the federal bench. The Feeney Amendment was tacked on to the legislation on the House floor with little discussion, the statement said. “The Judiciary was not asked for its views on this amendment, nor was it advised of consideration,” the conference said. Since the passage of the PROTECT Act, some members of the Sentencing Commission have joined Rehnquist in criticizing the Feeney Amendment, with the chief justice saying it “will seriously impair the ability of the courts to impose just and responsible sentences.” The Judicial Conference on Tuesday threw its support behind a pending bill seeking repeal of many aspects of the sentencing provisions of the PROTECT Act. The bill is called the Judicial Use of Discretion to Guarantee Equity in Sentencing Act of 2003, and is known as the JUDGES Act. The vote came one day after Attorney General John Ashcroft directed his 94 U.S. Attorneys to sharply limit the practice of shaping indictments to obtain guilty pleas and seek, in all but the most limited circumstances, the most serious “readily provable” charges carrying the maximum sentence under the guidelines. An attorney general memo to the U.S. Attorneys also contained other changes designed to curb the exercise of downward departures. In addition to the chief justice, other judges have been increasingly vocal about the guidelines and additional restrictions on their authority, with minimum mandatory sentences drawing particular attention. In June, Southern District Judge John S. Martin Jr. announced his intention to step down from the bench, citing, in part, the “unjust” nature of the sentencing guidelines and the proliferation of mandatory minimums. Martin later called the measure restricting the number of judges on the Sentencing Commission to no more than three “a real slap in the face to the judiciary by the American Congress.” Jonathan Groner of Legal Times , an affiliate of the New York Law Journal and law.com, contributed to this article.

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