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March|April 2004
How I Lost the Big One By Lawrence Lessig
The White Wall By Stephanie Mencimer
Call Forwarding By Nicholas Thompson
Down With Discretion By Michael S. Gerber

Down With Discretion

How a few prosecutors passed a sweeping law that reduced the power of judges across the country.

By Michael S. Gerber

TOM FEENEY IS A FRESHMAN CONGRESSMAN from Florida. During his first six months in the House, the Republican was the lead sponsor on one bill, a resolution honoring the varsity cheerleaders at the University of Central Florida on the occasion of their national championship. Then, last spring, he championed a sweeping change in national sentencing policy.

The Feeney Amendment was kept under wraps until just before it was scheduled to go to the House floor. There were no hearings held on the legislation. No Congressional committee debated it. The amendment was attached to the PROTECT Act, a popular piece of legislation aimed at preventing kidnapping and child pornography. Opponents of the amendment—the NAACP, the American Bar Association, the National Association of Criminal Defense Lawyers—were left scrambling. "They slapped it on there," said Kyle O'Dowd, the legislative director for NACDL. "No provision of this breadth had been introduced or talked about." In March 2003, the amendment passed 357 to 58.

The Feeney Amendment took aim at judges' authority to give breaks to defendants at sentencing. Most crimes are tried and punished in state court, and federal sentencing usually holds the attention of just a small number of dedicated advocates and scholars. This law, by contrast, has infuriated not only liberal interest groups but also most of the nation's judiciary, including the conservative Supreme Court justices William Rehnquist and Anthony Kennedy. Over the summer, Judge John S. Martin Jr. of the U.S. District Court in New York, who was appointed during the first Bush Administration, resigned over the bill, denouncing it as "an effort to intimidate judges to follow sentencing guidelines." Its authors put things a bit differently. "'Intimidate' is a loaded word," Feeney said. "We're asking judges to explain their rationale."

FOR MOST OF THE NATION'S HISTORY, there were no guidelines for judges at sentencing. Punishments for similar crimes varied greatly in different federal courtrooms across the country (as they still do in some state courts). In the 1970s, however, some liberals became increasingly uncomfortable with the disparate treatment of similar defendants. In the 1972 book Criminal Sentences: Law Without Order, then-federal judge Marvin Frankel argued that a judge's personal philosophy inadvisedly carried more weight than any other factor at sentencing. Efforts by Senator Edward Kennedy of Massachusetts to make sentencing more uniform led to the passage of the Sentencing Reform Act in 1984. The law established the U.S. Sentencing Commission, which created a set of sentencing guidelines. The guidelines give judges a chart, with the length of a sentence determined by the severity of the crime committed and the extent of the offender's criminal history. Find the column for possessing child pornography and the row for a first-time offender, and you get the recommended sentence for a defendant with no criminal record convicted of possession of child porn (18 to 24 months).

Since their inception, the guidelines have allowed for some flexibility. Judges have been permitted to go below the prescribed range—to "depart downward"— for reasons laid out by the sentencing commission, like a defendant's health or family responsibilities. (Judges can also give harsher sentences, though that's rare.) Prosecutors are also allowed to recommend a sentencing break for a defendant who has given them "substantial assistance" by informing on other suspects or testifying against them.

The Feeney Amendment's backers say that the rate of sentencing breaks initiated by judges has been on the rise, jumping from about 12 percent of all cases in 1997 to about 18 percent in 2001. Prosecutors who don't like the increase blame it on activist judges emboldened by the 1996 Supreme Court decision United States v. Koon. In that case, the court reversed an appeals court's decision to examine from scratch a district court judge's reduction of the sentence of a Los Angeles police officer convicted of beating Rodney King. A downward departure should stand, the Supreme Court said, unless the sentencing judge "abused his discretion," a deferential standard that made sentencing breaks far harder to challenge successfully.

But the claim that judges rushed to spare defendants in the wake of Koon may be skewed or incomplete. In a pair of influential articles in the Iowa Law Review, Frank O. Bowman and Michael Heise argued that plea bargaining in the districts bordering Mexico accounts for much of the recent increase in below-guidelines sentences. More than half of the departures initiated by judges in 2001 occurred in five districts on the southern border, where federal prosecutors routinely opt for lower sentences as they churn through heavy drug and immigration caseloads. "These are departures that the government is asking for," said Bowman, a law professor at the University of Indiana. He argued that his research "exposes at least a significant weakness in the government's argument about judges going wild."

But Bowman says prosecutors and lawmakers are justifiably concerned about disparities in sentencing from region to region. In 2001, judges in the Fourth Circuit in the South gave lower sentences in only about 5 percent of the cases that came before them. Meanwhile, judges in the Second Circuit in the Northeast reduced defendants' sentences about 20 percent of the time. "There is too much regional disparity," Bowman said. "If you've got five kilos of cocaine in El Paso, then [your punishment should be] the same as if you've got five kilos in Indianapolis.

Prosecutors, for their part, aren't against sentencing breaks per se. From 1997 to 2002, downward departures recommended by prosecutors for cooperating defendants represented about the same share of cases as departures given by judges did, declining slightly from about 19 to 17 percent. Out of almost 55,000 total cases in 2001, judges reduced prison terms in only 636 more cases than prosecutors.

But the power of judges to intercede contrary to the government's wishes has implications beyond the number of years or months an individual will spend in jail. When judges decide on their own to give defendants a break at sentencing, they diminish prosecutors' authority—and their ability to convince future defendants to cooperate, an important tool of law enforcement. Defendants who hope for a break from the judge are less likely to give prosecutors the information or testimony they want. "It's no darn use to win your case at trial and lose it at sentencing," said William Otis, a former assistant U.S. attorney in eastern Virginia. "We are silently sliding back to the system that the Sentencing Reform Act was designed to eliminate—basically a lawless, entirely discretionary system of sentencing."

THE PRIMARY AUTHOR OF THE FEENEY AMENDMENT is Jay Apperson, who worked with Otis in the Virginia U.S. attorney's office for a decade before becoming one of Kenneth Starr's deputies in the independent counsel's office that investigated the Clintons. In the past, Apperson has denounced judges who he sees as liberal activists. In a letter to The Washington Post following the late Justice Thurgood Marshall's retirement, he wrote that Marshall's "political and ideological agenda to change society had no place on the court."

As an aide to F. James Sensenbrenner, the 13-term Republican congressman from Wisconsin who chairs the House Judiciary Committee, Apperson drafted a bill to reduce judicial discretion and lengthen sentences. He worked closely with Justice Department lawyers. The bill he came up with limited judges' authority to reduce a sentence based on a defendant's extenuating circumstances. The draft also scrapped the deferential standard for appellate review of downward departures from the Koon case, replacing it with review from scratch. Most controversially, it called for the Justice Department to report all sentencing breaks initiated by judges to the House and Senate judiciary committees.

Sensenbrenner and his staff had already gone after one judge for his sentencing record. James Rosenbaum, the chief judge of the U.S. District Court in Minnesota, testified before a subcommittee in May 2002 that the sentencing guidelines for drug offenses were too strict. The subcommittee responded by accusing Rosenbaum of misleading the panel—and by taking the unprecedented step of threatening to subpoena the judge's sentencing records, calling that action appropriate Congressional oversight. Rosenbaum and his defenders cried intimidation.

After the Feeney Amendment sailed through the House last spring, its opponents struggled to mount a fight in the Senate. They got the attention of Edward Kennedy, who wrote to Republican senator Orrin Hatch, chairman of the Senate Judiciary Committee. Kennedy asked Hatch not to unravel the guidelines they had worked together to pass. But Hatch wasn't interested in joining forces.

On April 8, 14 representatives and 7 senators gathered to produce a final version of the PROTECT Act. The lawmakers began arguing over the attached Feeney Amendment almost immediately. In response to Kennedy's criticisms, Hatch conceded that some Senate Republicans had reservations about the amendment's broad scope. As the discussion heated up, Hatch unveiled a compromise that he'd negotiated. He said the new version of the bill would reduce judges' authority to lower sentences only in cases involving crimes against children and sex crimes. Then he forced the Democrats to respond to his proposal immediately. "He circulates this amendment, and it's the first time we've seen it," said a Senate Democratic aide. "We didn't have any time."

Hatch correctly pointed out that most bills include provisions that haven't been read by the majority of Congress. His compromise passed the conference 11-5, with the support of one Democrat, Senator Joseph Biden of Delaware.

When the conference ended late in the afternoon, Democratic aides hurried to scrutinize Hatch's proposal. They didn't like what they saw. According to several opponents of the Feeney Amendment, the new version was much like the old one, curtailing judges' authority to reduce sentences across the board. Later, on the floor of the Senate, Kennedy accused Hatch of misleading members of the conference. "It is a lousy way to legislate, Mr. Chairman," Kennedy said, asking Hatch to write in the limitations he'd promised. "I feel badly that my colleague feels like he was misled, because I don't think I misled him," Hatch responded on the Senate floor.

Eight hours later, at around 1 a.m., Sensenbrenner filed a "technical correction" to the amendment. Technical corrections are usually passed without a vote, to make minor changes for clarity. But this one scaled back the Feeney Amendment as Hatch had initially promised, barring judges from lowering sentences only in cases involving sex crimes and crimes against children.

Otherwise, the final Feeney Amendment mirrored the House version, calling for fresh review of downward departures; giving the Department of Justice access to the sentencing records of every federal judge; and requiring the DOJ to report all below-guidelines sentences to the House and Senate. Finally, the law directed the Sentencing Commission to make changes to the guidelines within six months that would "significantly reduce" the incidence of downward departures.

The amendment's opponents took some solace from having rolled back the amendment's most sweeping provision. "A disaster," said O'Dowd of NACDL. "But not an unmitigated disaster." The bill passed the Senate 98-0. Even Kennedy voted for it.

IN THE FOLLOWING MONTHS, Kennedy joined with Michigan representative John Conyers, the ranking Democrat on the House Judiciary Committee, to introduce the Judges Act, which aims to repeal the Feeney Amendment. The proposed legislation is a long shot. Still, its supporters have new ammunition: Recent statistics from the Sentencing Commission show that the government initiated almost half of the downward departures given in 2001—for reasons other than the assistance a defendant gave the prosecution. Most of these sentencing breaks were the result of plea bargaining in the border districts, as Bowman's research suggested. The new numbers indicate that judges initiated departures in only 11 percent of cases overall—which means that the rise in sentencing breaks that was the rallying cry for the Feeney Amendment had little to do with activist judges after all.

Perhaps emboldened by that finding, the Sentencing Commission responded to the Feeney Amendment's directives in October with changes to the sentencing guidelines that fell far short of what Sensenbrenner, Apperson, and the DOJ had hoped for.

In response, the DOJ's representative to the commission, Eric Jaso, said the commissioners had failed to achieve Congress's and the DOJ's goals. If the commissioners continued to flout Congress, one Republican aide predicted, their strategy would backfire. "The huge irony is here we continue to bend over backwards trying to preserve appropriate discretion in those truly needed cases," he said. "When the commission doesn't get it, the natural reaction from Congress is the sledgehammer."

But that threat hasn't stopped many judges from pushing back. In a speech to the American Bar Association last summer, Justice Kennedy warned that "a transfer of sentencing discretion from a judge to an assistant U.S. attorney, often not much older than the defendant, is misguided." The Judicial Conference, a body of senior federal judges chaired by Rehnquist, voted to support the repeal of the Feeney Amendment.

A few on the bench have gone further. Judge Sterling Johnson Jr., a former New York City prosecutor, defied the part of the law that his colleagues see as an attempt at intimidation, the provision that gives Congress direct access to sentencing records. Johnson sealed all the sentencing documents in all the cases before him, saying Congress can't see them without his approval. "At some point you have to take a stand," he announced in The New York Times in December. "If Congress wants to make a deck of cards for the judges like they did for the bad guys in Iraq, then make me the ace of spades."

A Judge's View

THE DEBATE ABOUT SENTENCING IN FEDERAL COURTS seems to pit prosecutors and politicians against judges. The debate intensified last spring after Congress passed the Feeney Amendment, which restricts judges from imposing lower sentences than those set by the federal sentencing guidelines and requires reports to Congress on judges who skirt the guidelines. This January, in his annual address on the state of the judiciary, Chief Justice William Rehnquist of the Supreme Court criticized the amendment, saying that it "could appear to be an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties."

I agree that legislation that changes the carefully calibrated guidelines should never be passed without public hearing and full debate. But as a district court judge, I have a first-hand perspective on the question of how much direction we need, constitutionally require, or deserve from the other branches of government. And I believe that, for the most part, the prosecutors and the politicians are right: Strict sentencing guidelines have served us well.

For starters, we should remember that similarly loud complaints preceded the guidelines, which went into effect in 1987. Before then, there were indefensible disparities in the sentencing of similarly situated offenders. Critics of the old system convincingly demonstrated how unfair it was for two individuals with similar criminal records, convicted of similar crimes, to receive different sentences—as outrageously different as probation versus imprisonment for 10 years or more. The disparities turned solely on the "discretion" of the sentencing judge.

Given how the guidelines work, the crime with which a defendant is charged is the starting point for his sentence. That's why Attorney General John Ashcroft said in a September 2003 memo that prosecutors "must charge and pursue the most serious, readily provable offense or offenses that are supported by the facts." The memo was widely reported to have set out a new get-tough policy. But all it really asked was that federal prosecutors practice "truth in charging," just as we expect banks to practice "truth in lending."

The guidelines make sense primarily because the public has an interest in ensuring that federal prosecutors, who usually prosecute the most serious drug and financial crimes, ferret out all available evidence and charge the most serious crime supported by that evidence. Otherwise, prosecutors could "charge bargain"—bring reduced charges against a defendant in return for a promise to plead guilty. That makes less work for prosecutors and defense lawyers, but prevents the public from learning the severity of the defendant's crimes.

Federal prosecutors also appropriately play a major role at sentencing. Only they can recommend a sentencing break for a defendant who has provided information or testified against a co-defendant and thus given "substantial assistance" in the prosecution of another person. The successful war against organized crime in this country has been largely based on aggressive prosecution, including winning over "snitches" who have cooperated with authorities and have testified against their confederates. In those districts where defendants regularly help U.S. Attorneys build cases against others, there will be a significant rate of below-guidelines sentencing. At the same time, judges always retain the power to approve or refuse a prosecutor's request for a lower sentence.

I believe that some of the sentences in the guidelines are too stringent and others too lenient. I also believe that the guidelines are sometimes more complicated than necessary. But my personal views do not control my sentencing because, as I promised in my confirmation hearing and when I took my oath of office, I'm sworn to uphold the law. What I have lost in discretion, the public has gained in a firmer, more uniform federal sentencing regime. It keeps penalties consistent and discourages backroom deals by limiting judges and prosecutors' options for reducing sentences.

Judges shouldn't insist on giving lower sentences. That is the law, and it is a good law.

Michael Baylson is a judge in the U.S. District Court for the Eastern District of Pennsylvania.

Michael S. Gerber is a writer living in Washington, D.C.

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