What Do Judges Think about the Feeney Amendment?

Judicature, July/August 2004 | Go to article overview

What Do Judges Think about the Feeney Amendment?


From time to time Judicature intends to seek the views of several judges on timely issues affecting the courts and the administration of justice. It may be an issue affecting the federal courts, the state courts, or both. Readers are invited to submit topics they believe should be addressed.

We have chosen for the first topic the Feeney Amendment. The Feeney Amendment was added to the socalled Amber Alert bill, which was signed by President Bush on April 30, 2003. It was added without hearings and with limited debate. Among other things, the Amendment prevents judges from departing downward because of assistance by the defendant in either the investigation or his own prosecution unless the government files a motion requesting such a departure; overrules a 1996 Supreme Court decision holding that the federal appellate courts must give "due deference" to trial court departure decisions; prohibits the Sentencing Commission from adopting any new grounds for downward departure until May 2005; requires the chief judges of each district to submit to the sentencing commission a detailed report on each sentence imposed by judges in the district within 30 days of entry of judgment; and requires the Sentencing Commission, upon request, to make available to the House and Senate Judiciary Committees and the Attorney General the sentencing reports (including the identity of the sentencing judge) and any other records received from the courts.

We invited Judges Andre Davis, Lawrence Piersol, and Deanell Reece Tacha to respond to the following questions:

1. As you know, the Feeney Amendment has generated considerable controversy, prompting questions and criticism about both the manner in which it was developed and passed and the content of its provisions. Focusing on the latter, do you believe that the Feeney Amendment should be of concern to thoughtful citizens and why?

2. Are you personally concerned about the effect of the Feeney Amendment on the balance of power (i.e., between prosecutor and defendant, between the executive and judicial branches) in the criminal process?

3. Do you see any problem with the Feeney Amendment's reporting provisions?

4. What does the Feeney Amendment mean for the future of the Sentencing Commission and the whole project of guideline sentencing?

5. Although Congress appears to have acted on the basis of misleading data, the rate of departures not sought by the government does appeal high in at least a few courts. What alternative approach would you recommend?

6. The Feeney Amendment established (Ze Mouo review as opposed to a review giving district judges some discretion. How do you think that affects the interplay between district and circuit judges?

After we submitted these questions to the judges, the U.S. Supreme Court decided the case of Blakely v. Washington, 2004 WL 1402697 (U.S. June 24, 2004). In Blakely, the Court ruled that, except for prior convictions, any factor increasing a criminal sentence must be admitted by the defendant or proved to a jury beyond a reasonable doubt. Judges may not make such an additional determination themselves. Because of the evident importance of Blakely and its possible implications for the Sentencing Guidelines, we invited Judges Davis, Piersol, and Tacha to incorporate attention to that decision in their responses. They chose to do so in quite different ways that suggest a variety of views about the nature and extent of those implications. The comments reflect only the personal opinions of the authors and not of any other individual or organization.

Andre M. Davis

Question 1. Thoughtful citizens should be alarmed at the content of the Feeney Amendment. First, the drastic reduction in judicial sentencing discretion effected by the Amendment denigrates the accumulated experience and expertise of federal district judges in an area in which district judges are uniquely qualified to make just decisions. …

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