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Nearly two years ago, the congressional Feeney Amendment and its get-tough approach to locking up criminals and scrutinizing sentencing decisions by individual federal judges was the talk of the bench and the bar. Today, Feeney is dead, slain by the U.S. Supreme Court. The Feeney Amendment’s demise is spelled out in a little-noticed part of the high court’s Jan. 12 decisions in U.S. v Freddie J. Booker and U.S. v. Ducan Fanfan. The justices, in two 5-4 votes, neutered the federal sentencing guidelines that judges have had to follow for 20 years by making them advisory, not mandatory. In the words of Justice Stephen G. Breyer, who wrote the majority opinion making the guidelines advisory, the 2003 amendment to the Protect Act, sponsored by Orlando, Fla.-area, freshman Republican congressman Tom Feeney, had made guidelines sentencing “even more mandatory” than it was before. Therefore, with the Court’s decision that the guidelines violated defendants’ Sixth Amendment right to trial by jury, the Feeney Amendment had “ceased to be relevant,” Breyer said. The Feeney provision was a late addition to a politically popular, anti-child-kidnapping bill whose full name was the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Act. The provision sought to reduce so-called downward departures by judges from the standard guideline sentencing ranges. To accomplish that, the amendment instructed the U.S. Sentencing Commission to change its policies to reduce downward departures. It also required federal appellate courts to conduct fresh reviews of all downward departures by district court judges. Most controversially, it established a system for reporting to Congress how individual federal judges handled sentencing. That last mandate to monitor downward departures was particularly worrisome to judges, who saw it as an intimidation tactic and a serious encroachment on the independence of the judiciary. Chief Justice William R. Rehnquist and the U.S. Judicial Conference publicly opposed the Feeney provisions. Despite strong concerns expressed by Democratic leaders, the Protect Act passed Congress overwhelmingly. Critics said there was no strong evidence that judges were abusing their limited discretion in sentencing. They noted that prosecutors supported many downward departures because they were given to defendants who cooperated with the government. But now, like the rest of the Feeney Amendment, the congressional scrutiny requirement has been “eviscerated — for there can be no departure from a mere suggestion,” as Justice John Paul Stevens wrote in his dissent from the majority’s remedy. Criminal defense lawyers say the congressional intervention provision helped lead the justices to throw out the mandatory sentencing system in the cases of Wisconsin and Maine drug defendants, Freddie J. Booker and Ducan Fanfan. “There has been a highly accentuated undercurrent of tension between the judiciary and Congress over sentencing, and the shit finally hit the fan,” said Fort Lauderdale, Fla., attorney Benson B. Weintraub, an expert in sentencing issues. “Clearly, the Feeney Amendment accelerated the demise of the sentencing guidelines.” “It’s apparent from what Justice Stevens wrote that congressional meddling was an impetus for all of this,” agreed a Miami appellate attorney who declined to be named. “[Stevens] explains that the need for the majority decision and its protections are because of Congress’ previous sentence enhancements.” Congress and the judiciary also have been at odds over other matters, with the Feeney Amendment serving as a symbol of the conflict. Last March, House Judiciary Committee chairman F. James Sensenbrenner Jr., R-Ohio, delivered a scorching address to the U.S. Judicial Conference, consisting of 27 judges led by Rehnquist. The chairman accused the judiciary of failing to police itself and warned of heavier congressional oversight. Among other things, Sensenbrenner complained about the “sustained criticism” he and other congressional leaders had taken from the Judicial Conference and others for enacting the Feeney Amendment. He said Congress passed the provision in hopes it would curb sentencing disparities and alleged guidelines abuse by some judges. The Supreme Court issued two 5-4 decisions in Booker and Fanfan. The first held that the defendants’ Sixth Amendment rights to trial by jury were violated because the guidelines gave judges the power to make findings of fact beyond a jury’s verdict that were used to increase sentences. In its second opinion, the Court decided to remedy the problem and protect the rights of defendants by declaring the guidelines to be advisory, not mandatory. There’s trepidation about the next act in the epic tug-of-war between the branches for control of criminal sentencing. Justice Breyer, who wrote the majority opinion that kept the guidelines — which he helped draft 20 years ago — but made them voluntary, wrote that “the ball now lies in Congress’ court.” Some lawyers are hopeful that Congress won’t rush to judgment in its response because the Court didn’t toss out the guidelines completely. “Congress is being urged by people on both sides of the aisle and the judicial branch to study Booker and wait and see what happens as opposed to having a knee-jerk response and start passing new minimum mandatory sentences that are widely opposed,” said David O. Markus, a partner at Hirsch & Marcus in Miami who heads a group of about 160 private attorneys who represent indigent federal defendants when the Federal Public Defender’s Office has a conflict. “We’re all nervous about it, but this practical decision is the best way to avoid those minimum mandatory sentences,” Markus added. Other attorneys, like Weintraub, are more pessimistic. “We won the battle but lost the war insofar as the decision invites Congress to directly legislate more specific penalties, including statutory requirements anticipating sentencing enhancement factors,” Weintraub said. “This political climate is not good from a defense perspective.” Feeney — an attorney and former Florida House speaker who has been a sharp critic of what he considers judicial activism — released a statement calling the Supreme Court ruling “an egregious overreach into Congress’ constitutional power” that “flies in the face of the clear will of Congress” that the sentencing guidelines be mandatory. But Feeney spokeswoman Shannon Conklin said last week that the congressman isn’t ready yet to respond to questions about the Supreme Court rulings. It’s not hard to guess what Feeney would like to do now. In an Orlando Sentinel article last November when the Booker and Fanfan cases were still pending before the justices, Feeney discussed the possible congressional fallout from the ruling. “If they come down and undermine the whole way sentencing guidelines work, the only option Congress may have is to enact enhanced mandatory sentences,” Feeney warned. “If the courts throw out the sentencing wholesale, we will have a really big battle.”

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