Article excerpt

An edited transcript of a presentation at the annual meeting of the American Judicature Society on August 7, 2004.



Professor Stephen Burbank, University of Pennsylvania Law School, chair of the AJS Task Force on Judicial Independence and Accountability.

Task force members:

John Gibbons, former chief judge, U.S. Court of Appeals for the Third Circuit

New York attorney Alexander Reinert

Miami attorney Neal Sonnett

Peter Webster, a judge on the Florida First District Court of Appeal.

Professor Stephen Burbank: The AJS Task Force on Judicial Independence and Accountability was created early this year to continue and intensify the work of an earlier group. It has three goals: (1) to monitor developments bearing on judicial independence and accountability at the federal and state levels; (2) to respond to unwarranted attacks on the judiciary and to highly visible situations demonstrating a failure of judicial accountability, and (3) to sponsor programs and educate the public on

the relevant issues. We are presently in a period of high tension between the legislative and judicial branches of the federal government, and that situation also obtains in a number of states. As a result, there is no shortage of issues implicating the concerns that are central to the task force's mandate. For the present, the task force has chosen to monitor seven issues, and today we are going to discuss four of them. Obviously, therefore, this program is one way in which the task force seeks to accomplish its third goal of sponsoring programs to educate the public. In recent months, task force members have also worked to fulfill our second goal by commenting in editorials and in print and television interviews on current issues of judicial independence and accountability.

I am very pleased that our discussions today will be led by four distinguished members of the task force: Neal Sonnett, Alex Reinert, John Gibbons, and Peter Webster.

(Editor's note: A summary of Judge Gibbons' comments, and an update, are provided in "Recess appointments, page 120". Judge Webster's comments are in a separate article, "State court rule making and the separation of powers, page 117.)

So with no further ado, let me introduce Neal Sonnett, who will talk about the Feeney Amendment and other manifestations of the trend of reducing judicial discretion in sentencing.

Reducing sentencing discretion

Neal Sonnett: I am delighted to be part of this program because I think the task force is a very important part of AfS and a very important contribution to the justice system in this country. It is discussing issues that I think are vital to the justice system and, from my standpoint as a former prosecutor and criminal defense lawyer, vital to the criminal justice system in particular.

Steve has asked me to talk about what is known as the Feeney Amendment and its impact on the criminal justice system in this country. We are dealing here with legislation called the PROTECT Act. And that is an acronym for Prosecutorial Remedies and Tools against the Exploitation of Children Today. Not too many people even know what "PROTECT Act" stands for, and fewer people understand why sentencing managed to work its way into that piece of legislation. It happened because a freshman congressman by the name of Tom Feeney, who comes from my home state of Florida, was given the task by the administration of introducing an amendment that was intended to, and I think in large measure did, limit the discretion of federaljudges in sentencing decisions.

The PROTECT Act was what is more commonly known as the AMBER Alert Bill. Tell me if you can think of two or more people in the Senate or in the House of Representatives who would be on record voting against the AMBER Alert system. So the administration knew when they inserted this amendment into that act that it had a very good chance of passage. …