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The National Law Journal and Columbia Law School co-sponsored a roundtable on Nov. 18 on the Feeney Amendment, a measure passed this year that reduces the discretion of federal judges in sentencing criminal defendants under the Federal Sentencing Guidelines. The law constrains judges in “downward departing” — giving lesser sentences than the guidelines call for — and also sets in motion several processes for reporting the names of judges who downward depart. The following are excerpts from the discussion, moderated by NLJ Associate Editor Carla Main and U.S. District Judge and Columbia Law School Professor Gerard Lynch. A Webcast of the complete roundtable is available at www.nlj.com. CARLA MAIN: Representative Tom Feeney wrote to the Washington Post in response to an editorial in that paper that was critical of the Feeney Amendment: “I am perplexed as to why an amendment that seeks to enforce the intent of the Sentencing Reform Act of 1984, is so controversial to the Post. The guidelines state that sentences should be predictable, uniform, and tough, and that departures should be rare occurrences … .” Anything wrong with enforcing the law? ROSLYNN MAUSKOPF: Absolutely not. The sentencing guidelines, as the law of the land, should definitely be enforced as written. And I think we too are a bit surprised at the hue and cry that has come after the Feeney Amendment. In large part, I think the Feeney Amendment does nothing more than hearken all of us in the criminal justice system back to the principles that govern us and guide us. And those principles are first and foremost established by Congress, and established federal law, and fleshed out by the Sentencing Commission with the sentencing guidelines. So, I agree wholeheartedly with the principles behind the Feeney Amendment. GERALD LEFCOURT: If the truth be known, a full 90 percent of all sentences that have been issued by judges prior to the Feeney Amendment were within the guideline range, or were sentences that were requested or supported by the government … . And it’s no more than 10 percent of the sentences where there were departures at all that were judge-initiated … . You know, the whole system today operates on cooperation. If the government comes into court and says, this particular defendant cooperated … the judges are expected to do what the prosecutors want. And they do. And so, what we’ve had, by and large, is a very responsible judiciary, but one that has carried out the historical function of the judiciary to provide for individualized justice. What now is going on, and what the Feeney Amendment has established … is making judges junior accountants, that must do what the particular Sentencing Commission has provided for, which leaves them very little choice. I now hear judges … who say to the prosecutors at times, “would it be so bad to depart in this particular situation? I’m generally a good judge for the prosecution.” Words that you would never hear before the sentencing guidelines, when most of us started practicing, prosecutors never took any position. Now they not only take a position, they dictate what it is. And I don’t think it’s the letter of the guidelines. It is really a shift in who is doing the sentencing … . CARLA MAIN: Mr. Steer, has the Feeney Amendment made judges junior accountants? JOHN STEER: I don’t think so. If judges are accountants because they find facts and apply the law, then that’s what the sentencing guidelines are about. The Sentencing Commission, by the way, wanted the Congress to slow down and let us do a thorough study. After the fact, we did … . And that’s what we found, that the true downward departure rate was somewhere between 10 percent and 11 percent. But that’s just part of the story. One also has to look at the changes by district … . And, as I first reported, before the Senate Judiciary Committee in October of 2000 … that the departure rates were up, pretty much across the board. But especially in immigration cases. But you can’t account for all the change with immigration cases and government initiatives. Ten years ago, 95 percent of the districts, the federal districts, had a departure rate of less than 10 percent. In 2001, 60 percent of the districts had a downward departure rate in that category. But there were still many districts that had a very low departure rate … . It’s the question of whether or not, and from Congress’ standpoint, the districts are sufficiently uniform … . JOHN MARTIN: Let’s start with the fact that Congressman Feeney’s statement is just dead wrong, as to what was intended when the sentencing guidelines were passed. He apparently thinks he’s a better interpreter of legislative history than Justice [Anthony M.] Kennedy in the Koon decision, who said that, just the opposite, that it was not the intent … of Congress to strip judges of the power to look at each individual before them as an individual … and that the power to depart was an important part of the whole sentencing structure … . Think about it: Seven really bright people, sitting around a table in Washington. Now, how much foresight do they have to have, to have the ability to predict in advance the right sentence for the 55,000 people that are sentenced in the federal courts every year? I think a 10 percent departure rate is much too low, because nobody has that type of foresight. Each case has to be judged individually, just as Kennedy said in the Koon case. The role of the district judge is to look at the fact situation and say, is this the typical case for which the guidelines were intended? Or is this, in his words, out of the heartland? You have broad statutes: the mail fraud statute. If you engage in a scheme in order to defraud, that covers people who sell boiler-room stock, that is, stock without any value, sell it to people who are retired, take their life savings. It also applies to people who sell something you can put on your head to make you grow hair when you’re bald. Those are two, in my view, very different types of criminal conduct that do not, necessarily, deserve the same sentence. It should not make a difference if you sell a kilogram of heroin in New York, or in St. Louis. The same standard should apply. But the problem is, the facts are so varied … . You cannot do this by the numbers. There has got to be somebody that has the discretion to say, yes, that’s an appropriate case for the typical dealer, but not this one. CARLA MAIN: Let’s turn our attention to the reporting requirements of the Feeney Amendment, which has been a subject that’s garnered a great deal of controversy. Under the new law, and current DOJ rules, downward departures are being reported through several avenues, including reports to the United States Sentencing Commission, reports to the House and Senate judiciary committees, and reports to the attorney general. All of these reports include the name of the sentencing judge involved. These developments have raised a specter of a blacklist of judges and concerns about political pressures that can be brought to bear on individual judges who dispense unpopular sentences. Will this affect the independence of the federal judiciary? JOHN STEER: At this point, I think it’s largely an overreaction. We’ll have to see how events play out to see if some of the concerns might turn out to be legitimate. There are three aspects of this. One is the reporting to the Sentencing Commission. Now, the Sentencing Reform Act from the outset had a requirement that … the appropriate judge or officer shall make a report to the Sentencing Commission on every case that is sentenced. And yet … in 2001, there were 4,849 cases sentenced by federal judges in which the judge did not send a report to the Sentencing Commission. Now, if that’s not a cause that Congress would look at and say, you know, what’s going on here? But let me get to the two issues I think are potentially of legitimate concern. One is the protection of the confidentiality of informants and other people who have provided substantial assistance to the government … . We will be very concerned about taking steps to ensure that confidentiality of informants and others necessary to make the system work, is protected. And I think, hopefully Congress will understand that. Maybe they should have thought more about it. The second thing is: Do we want a specter of judges being hauled before committees of Congress to explain their sentencings? I don’t think that’s going to happen. It could. Some have said, well, when district judges are up for consideration, for maybe a promotion to court of appeals, and maybe the Senate Judiciary Committee will start asking for their sentencing record. That could happen … . What’s so bad about accountability? It’s all about our public record … . I don’t want to see judges hauled up before committees, but I’m not so sure that some greater degree of accountability is all bad. JOHN MARTIN: If you want accountability, you call that the Circuit Courts of Appeal. I think what is the pernicious part of this whole thing is simply the intent. This wasn’t an intent simply to get useful information. This was legislation which was put on as, in my view, just a total attack on judges. And with an attempt to intimidate. I certainly hope my former colleagues wouldn’t give in to that pressure, but look … judges don’t like to be reversed. Some judges are more concerned about their reversal rate than others. Some judges obviously are more concerned about the possibility of being reported. But what I found most offensive about the Feeney Amendment was the overall attack on the judiciary, of which this was simply a part … . The thing I found most offensive was … [t]o say that no more than three members [of the Sentencing Commission] could be judges, to really say judges really don’t know what they’re doing in this area, don’t let them get anywhere near this process. And it’s unfortunate that the Congress and the judiciary, and I don’t think it’s Congress, the other thing to remember, and everybody talks about the Feeney Amendment, and they say, well, this is what Congress wanted. Hogwash … . Because, if the Justice Department were so sure that this is what Congress wanted, why did they use this stealth tactic? Why didn’t they allow Congress to hold hearings, and hold these issues up to the light of day, and say: “Is this a problem?” GERALD LEFCOURT: A lot of people don’t understand how people become judges and who most judges are, but I think you’ve got to be pretty prudent, through your career, to become a federal judge. I think you have to have played the right games … . They’re basically people who are not … the bravest. Notwithstanding lifetime tenure. I’ve seen judges in recent years, under the guidelines, just say silly things like, you know, “I really can’t do that. I would like to do that.” And they say those things sometimes on the record. These are people who are supposed to have the greatest courage in our society … . Why do they need the names of the judges who impose sentences and their departures? Why do they need the names, if it’s just for data? Judges are intimidated by this kind of legislation, and it’s a scary prospect. And that is why the United States Judicial Conference unanimously wants to change what has occurred. CARLA MAIN: Ms. Mauskopf, there’s always an adversarial relationship between the prosecution and the defense, but does the Feeney Amendment and the heightened awareness of all the requirements add perhaps an adversarial dimension to the relationship between the prosecution and the judge? ROSLYNN MAUSKOPF: I don’t think so, if exercised the way I anticipate this reporting requirement will be exercised. We too in the Department of Justice have a reporting requirement that requires us to notify, keep records and notify main Justice with respect to certain categories of downward departures … . The attorney general … articulated a very limited set of circumstances [relating to] consideration for appeal of certain downward departures. And in effect, they are downward departures that the Department of Justice would have considered appealing in the days long before the Feeney Amendment … that had serious consequences to particular sentences. As for judicial independence, and the adversarial nature of the relationship here, I’m having a lot of trouble understanding why judges with lifetime tenure would be afraid to make the decisions that they have been making, day in and day out, just because a congressman or a group of congressmen have sent a message across their bow. The guidelines still allow for departures, the Department of Justice will still consent to departures, agree to facts supporting departures, and departures will not be going away in the post-Feeney Amendment era. As far as a blacklist of judges, which is a term that’s been bandied about, let me answer it this way: We know who’s been naughty, we know who’s been nice. We’ve known that before the Feeney Amendment, we will know that long after the Feeney Amendment, and we have always carefully considered the situations in which we seek to appeal the downward departure of a particular judge. That has always been the case. That will continue to be the case. And, it is only in the rarest of cases where we feel the departure is wholly unsupported by the guidelines, or otherwise illegal, that we will seek to appeal a decision on a downward departure. GERALD LEFCOURT: I’m just wondering why it is that General Ashcroft seeks to have prosecutors who are appearing in front of judges report downward departures by those judges. Isn’t there something, aren’t the judges supposed to be watching the prosecutors? [Laughter] Not vice versa? ROSLYNN MAUSKOPF: I think we’re all there to seek justice. And justice is defined within the bounds of the law, and within the bounds of the guidelines. And there are some things in the law, and some things in the guidelines that are clearly out of bounds. And, I think as we all know, from practicing … there are indeed judges … in districts across the country who routinely, for a variety of reasons, do not adhere to the letter or the spirit of the law. And they flout it regularly. And, those decisions have serious consequences on meting out justice as the law sets it out. JOHN MARTIN: … I happen to be a great believer in appellate review. Unfortunately, we got to the guidelines because the appellate courts would not review sentences … . I have no problem. I have been reversed for departing upward, and I’ve been reversed for departing downward. JOHN STEER: I think we have common ground there … with respect to appellate review … . And he’s also right that the Department of Justice and the prosecutors in the field were felt to be doing that too little … . And that’s why a major focus of the Protect Act was not on judges. It was on the department. The attorney general was told to basically come out with this guidance to prosecutors in the field, saying thou shall appeal. Now, that was a directive by Congress, essentially. ROSLYNN MAUSKOPF: And anybody’s intimidated in the system. We are, because we don’t want to take our judges up on appeal. We have to see them day in and day out, and we think very, very carefully before we will seek to appeal one of our judges on any of these issues. GERALD LEFCOURT: I think one of the reasons why the Department of Justice doesn’t take more appeals and the National Association of Criminal Defense Lawyers, believe it or not, filed an amicus brief in the Supreme Court of the United States on behalf of police officer [Stacey] Koon, who probably beat Rodney King to a pulp, but the reason was, is so that there could be a standard that there would some deference to district judges. It was the Koon decision … that was the problem, because they felt they couldn’t win if the court below was given the kind of deference that the Supreme Court envisioned. And the Feeney Amendment overrules Koon, and that was the goal. GERARD LYNCH: The original decision upholding the [constitutionality of the] guidelines is United States [v.] Mistretta. The Sentencing Reform Act itself makes a point of the idea that sentencing is a judicial function, and one way that it does that is by locating the Sentencing Commission in the judicial branch … . Now that Congress has ensured that judges will be a minority on the Sentencing Commission, what role should judges have … in setting overall sentencing policy? And, does thrusting the judges into a minority role on the commission open an avenue for attacking the constitutionality of the present version of the Sentencing Commission? GERALD LEFCOURT: Mistretta was a decision [where] you got the feeling there that one of the reasons why they upheld the sentencing-guideline regime, if you will, is the thought that there was built into the sentencing-guidelines statutes the right to depart, and they viewed it much more back then as the word guideline seems to connote, a suggestion, not a straitjacket, which it has become … . Now we’re looking at something vastly different. We’re looking at the question of whether the Congress can in effect take away the judiciary’s more than 200-year role in the criminal justice system, the sentencing function. JOHN STEER: [I]nitially, the first membership of the commission was three judges … . Over the years it got to be as high as five. We now have four. Sure, the act changes it. I don’t know why, to say “not more than three.” I do agree, I think it was a bit of a gratuitous shot at the judiciary. I don’t understand fully the reasons for it, from a policy-making standpoint, when we talk about formulating sentencing policy, I personally think it’s critical to have judges on the Sentencing Commission … . They need to be well represented at the policy-making table … . ROSLYNN MAUSKOPF: I think judges should play a significant part in setting sentencing policy. And I think they do play a significant part … . It is the data that come from the judges, the wisdom of the judges, in applying the sentencing guidelines, the difficulties that they’re having, the departures that they see, that they impose. All of that goes into the mix, and is factored in by the Sentencing Commission in amending the guidelines. I came from the state system where we didn’t have guidelines, and you had mandatory sentences within a range, but … you could do a lot within the bounds of the sentencing structure. And, as a state prosecutor, you handle thousands and thousands of cases, much like a judge handles thousands and thousands of cases. And with experience, you sort of got a feel for what justice was in any particular case. When I became the U.S. Attorney … I was amazed at how well the guidelines actually captured, and were able to articulate, those intuitive factors that judges and prosecutors applied on a regular basis in state court or in federal court, preguidelines as to what justice was in a particular case. And I think the guidelines do strike a terrific balance between uniformity and individualized assessment … . GERALD LEFCOURT: I just see it a totally different way. You know, I think about the defendant who tried to help the government after being arrested, and right away admitted his wrongdoing, and offered to cooperate. But unbeknownst to him, they were arresting the person that he could cooperate on, and he admitted what he had done, he was sorry for it, he had even went to a shrink to discuss it, and showed all kinds of remorse. All of these things had no meaning any more. Individualized assessment, because that notion of what they call the 5K 2.0 downward departure and departures like that are all intended to be eliminated. The notion of a first offender, or a good family person, these are things that the guidelines specifically reject. All the kinds of things that you would think a judge might think about a defendant, because, as was said earlier, it’s about, you know, retribution, just deserts, don’t pay attention to these things. JOHN MARTIN: I think the guidelines worked pretty well in my court because I departed when I thought appropriate. I mean the main problem you have is two things, the mandatory minimums and the overly severe narcotics guidelines … . But if you have enough discretion, the guideline system makes sense. And I think part of the problem that you have here, part of the tension is, you know, Congress legislates for the stereotypical criminal. And judges sentence real people. And very often, that real person who is before you on the case is not the stereotypical person for whom the mandatory minimum or the guideline was created. And I really think that perhaps the building where General Ashcroft has his office should probably change its name to the Department of No Disparity. Because we’ve raised a doing away with disparity to a level of importance in the values of the criminal justice system that it doesn’t deserve … . GERARD LYNCH: Now, is it a problem that individualizing justice leads to discrimination? Or just arbitrariness? Or just different reactions by different judges? JOHN STEER: Well, Congress thought so. I think my friends … would have us believe that the differences in sentencing that result under the current system are all about legitimate differences in the facts of the offense and characteristics of the offender. I don’t think it can be explained so easily. It’s a lot about differences in philosophy, of sentencing and about weighing particular factors differently. And, whether you like it or not, Congress thought that the weighing should be done by a commission in Washington, and in the long run, that would be better, and the judges should depart when there was a factor that was not adequately taken into account, or was of a different kind or degree than what was considered in the guideline calculus. GERARD LYNCH: Roz, [another panelist said] that by and large, it’s the prosecutors who reserve the discretion to themselves, who effectively do the sentencing under the guidelines, rather than judges doing the sentencing. Is there accuracy to that? And is that the way it should be? ROSLYNN MAUSKOPF: One of the largest areas of downward departures are those that are initiated by the government for substantial assistance. The Feeney Amendment doesn’t change anything with respect to the substantial-assistance downward departures, nor should it, because cooperation by informants and others who provide the government with information is critical to our efforts to address crime and to bring cases against the worst offenders that are out there. The federal system operates very much by using cooperators to make cases. And the sentencing guidelines reward individuals who come forward, admit their own culpability, tell the government everything that they know about the criminal conduct in which they were engaged and agree to testify in many instances, at great peril to themselves and to others, in order to enable us to make the greater case. Those situations are richly rewarded under the sentencing guidelines, as they should be … . But when it comes down to the garden-variety case, where there are issues as to what the appropriate sentence is going to be, we are part of an adversarial process … . JOHN MARTIN: Well, one of the other ways in which prosecutors may influence the sentence, besides 5K-1 [substantial assistance to the authorities], is this process of agreement with respect to the facts. In many of the cases that come before me, the prosecutor and the defense have agreed on the facts, and those are the facts that will be coded into the data in Washington. But most people who’ve litigated cases see that there are facts, and there are facts. And there are not quite facts … . The prosecutor and the defense may agree, you take one, I’ll take the other, and we’ll present that to the court. Is that appropriate? And does that set an example of the prosecutor presenting the judge with a kind of fait accompli that says, here are the facts, and here is the sentence … ? ROSLYNN MAUSKOPF: Well, we too now, as a result of the debate that has occurred after the Feeney Amendment, are required to bring to the court, well, we’re not supposed to engage in fact bargaining, we’re not supposed to engage in sentencing bargaining. And we are supposed to have truth and honesty in sentencing. Where we are to tell the court our honest view of what the facts are here. I think that goes on in the majority of sentences. None of this wink-wink, you do this, we’ll do that, and bind the judge there. I think the flip side of this whole debate is that you were going to see prosecutors reveal, not reveal, but discuss the facts relating to sentences as we always have, and not engage in this behind the scenes discussion [about sentences]. GERARD LYNCH: Well, Mr. Lefcourt … do you think there are or should be winks and agreements and deals? GERALD LEFCOURT: Well, not only should there be, there are. I am now presenting a case preindictment to a prosecutor, because that’s my real judge. And it will be about the amount of loss, and we’re discussing my view of loss, his view of loss. And the amount of loss will determine the sentence. There’s no question about that. So I have to try to convince the real judge in the case, before the case gets filed, what the facts are and get the real judge to see things my way, if I have any shot. And those kinds of things go on behind the scenes all the time, particularly preindictment, and course, the prosecutor always has the hammer, the real judge, to charge [under the Racketeer Influenced and Corrupt Organizations Act (RICO)], which ups the ante much more, or a money laundering charge, which can be applied just about to any case involving money. Because it’s so easy to apply the money laundering statutes to just about any financial crime that you’ve got to convince the real judge that this is not an appropriate case for money laundering or RICO. And those are the real deals … . JOHN MARTIN: I think there has been a real effort to take the discretion away from the prosecutors as well. But I think there’s simply got to be discretion in the system. And if you say to the prosecutor “you can’t vary from this guideline,” then the next question is, well, do you prosecute at all? I mean, you simply raise the ante … . I don’t think that the people on the line and the Department of Justice are people who are terribly cruel, just want to punish people for no reason. And I think that they will exercise discretion if they have it, to come to what they think is a fair result. They may disagree with Gerry Lefcourt as to what a fair result is. But I think when you take a trial and apply literally the idea, no prosecutor can do anything but apply the guidelines in the most strict manner, you’re going to find people who can’t be prosecutors any more, because nobody wants to be part of a system that they think is not just — one of the reasons I left, because I really am becoming more convinced that we did have an unjust system here. That [in] too many cases, you’re putting people in jail who don’t deserve it. There are a lot of people who deserve to be there … . Our resources are misspent. Our sentences are too severe. Our sentences are too long. GERARD LYNCH: Gerry Lefcourt, isn’t that really your problem when you get right down to it [that sentences are too long]? GERALD LEFCOURT: Well, that’s certainly one of the things. The guidelines have been amended 600 times, about, since they were first formulated. And most of those guidelines have ratcheted up the sentences. We now have more than 170,000 federal prisoners. We’ve now … surpassed the 2 million mark nationwide. We have states whose budgets are being driven into bankruptcy because of this notion that, unfortunately, the politicos give us every year of more and more and more jail time. It’s certainly a major problem, but that is not the only problem. If you go to trial on 40 counts of indictment, and get acquitted of 39 of them, you will do more time than if you plead guilty to all 40 of them, without going to trial. The guidelines act in a bizarre way. Acquitted conduct can be used against you. Because when the judge comes to sentencing, it’s a preponderance standard. There’s all kinds of machinations that make the whole guideline system very unfair … . Yes, the sentences are crazy, but that’s not the only problem. ROSLYNN MAUSKOPF: Don’t you think there should be an incentive for people to come forward, admit their guilt, admit, express remorse, pay back restitution and save the criminal justice system the time and expense of a trial to prove his case? Don’t you think there should be a premium applied as the sentencing guidelines do, to defendants who throw themselves on the mercy of the court? Shouldn’t they be rewarded? Don’t we want to encourage that kind of behavior? GERALD LEFCOURT: Well, there’s so many cases that should be tried … . Where there is a real question, depending how the judge is going to charge the jury, close cases, where trials do not occur because the crapshoot is so severe that people don’t take it. When you say “premium,” that’s what it’s come down to … . JOHN MARTIN: Let me just respond also. I’ve rewarded people for cooperating. The problem is, when you take the hard and fast rule, the guidelines favor the truly guilty. And they put the innocent at greatest risk. The guy who’s truly guilty is going to take the three points and get out of there. He’s going to go in, and he’ll try to cooperate. He’ll give up everybody who ever worked for him … . But it seems to me, when I was practicing criminal law preguidelines, I would always most often tell clients, you want to plead guilty, you don’t want to go to trial because you want the judge to think that you recognize you’re wrong, you’re not simply trying to hold up the system. But there were a class of cases when I would say to the client, look, you should go to trial, A, because you’re innocent, that’s an easy one. But, B, if the judge really hears … sees all the facts, the judge may be persuaded that you’re not as bad as the government is saying, and you may get a lesser sentence. And I would say, and I think I know that the judge is not going to hold it against you because you have a real case to try … . [Today,] the more likely the person is innocent is the more likely that they’re going to suffer the penalty of going to trial. GERARD LYNCH: Is … the Feeney Amendment a signal that there’s something wrong with the guidelines? … Scrap it and start over? GERALD LEFCOURT: The problem is the politics involved in criminal justice, it just overwhelms the system. You know, the notion originally that you could hope that there would be some independent commission that wouldn’t be subject to political pressure … Congress won’t let them do it, because it’s all about pandering to the public. And so, I have this very unfortunate view of lack of hope, really, almost, that things can improve as long as the present system is in place. GERARD LYNCH: John Martin, you’ve been very critical of different aspects of the guidelines. And let me put you on the spot. Does that mean that we should go back to the prior system? Is it time to repeal the Sentencing Reform Act? JOHN MARTIN: Well, if I had to choose between the guideline system we have now, and the preguideline system, I’d probably take the preguideline system. Because I think doing justice in individual cases is more important than having a problem of disparity in sentencing.
THE PARTICIPANTS: Gerald Lefcourt is a criminal defense attorney in private practice in New York and a past president of the National Association of Criminal Defense Lawyers. In 1997, he received the Thurgood Marshall Lifetime Achievement Award from the New York State Association of Criminal Defense Lawyers. John S. Martin Jr., formerly a judge in the U.S. District Court for the Southern District of New York, is of counsel to New York’s Debevoise & Plimpton. Roslynn Mauskopf is the United States Attorney for the Eastern District of New York. She was formerly the chief of the frauds bureau in the New York County District Attorney’s Office and later served as the inspector general of the State of New York. John Steer is a vice chairman of the U.S. Sentencing Commission, for which he had previously served as general counsel. Before appointment to the commission, Steer was counsel to the U.S. Senate Judiciary Committee.

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