Academic journal article Albany Law Review

Do Judges Need Protection? Legislative and Judicial Responses to the PROTECT Act's Feeney Amendment

Academic journal article Albany Law Review

Do Judges Need Protection? Legislative and Judicial Responses to the PROTECT Act's Feeney Amendment

Article excerpt


In light of the United States Supreme Court's decision in Blakely v. Washington, (1) few were surprised (2) by the Court's announcement in United States v. Booker. (3) In Booker, the Court revealed that the Federal Sentencing Guidelines ("Guidelines") suffered from a constitutional flaw similar to the one that rendered invalid the state of Washington's sentencing system. (4) Specifically, Justice Stevens, in his Booker opinion, held that the Sixth Amendment applies to the Guidelines and as such a trial judge may only rely on facts "admitted by the defendant or proved to a jury beyond a reasonable doubt" (5) when imposing a sentence. Most observers failed to anticipate, however, Justice Breyer's unusual second majority opinion in Booker that rescued the Guidelines as a whole by severing statutory language, which made compliance with the Guidelines compulsory, opting instead to construct them as merely advisory. (6)

At first glance, it is difficult to disagree with those who interpret Justice Breyer's remedy as a restoration of federal judicial discretion and a gigantic victory for the numerous federal judges who were furious with the Guidelines because they rightfully perceived them as an attack on their independence. (7) There is good reason to suspect, however, that the delight currently experienced by many judges and other opponents of the Guidelines will be short lived.

Although Justice Breyer fervently contends that his decision is consistent with what Congress would have wanted had it known of the Guideline's constitutional defects, (8) such a conclusion is suspect considering that Congress' most basic rationale in creating the Guidelines (and its recent amendments) was to curb disparate sentences through a reduction in judicial discretion. (9) Indeed, Justice Breyer acknowledged that his "is not the last word" and that "[t]he ball now lies in Congress' court" to readdress the sentencing system in the way it deems best, insuring, of course, constitutional compliance. (10) Early indications are, in fact, that legislators have heeded Justice Breyer's advice and many are eager to promptly revoke the judicial discretion his decision returned. (11)

It is not farfetched, therefore, to anticipate, in the not so distant future, a revised federal sentencing mechanism based closely on the existing Guidelines. As such, it will once again become necessary for Congress to consider the wisdom, and the courts to explore the constitutionality, of core provisions of the Guidelines' structure left unaffected by Booker.

The controversial Feeney Amendment to the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 ("PROTECT Act") (12) will be at the center of any legislative and judicial discussion on the matter. The amendment to the then existing Guidelines, which "created an uproar among federal judges and legal scholars," (13) all but eliminated a judge's discretion to impose lenient sentences on a case-by-case basis. It did so by creating a series of intrusive reporting requirements and altering the standard of review applied by appellate courts when considering the appropriateness of a sentence. (14) Adding to the storm of criticism surrounding the extensive changes made by the PROTECT Act, is the widely-held impression that it hastily passed through Congress without the benefit of public hearings and with very little debate on its potential consequences for sentencing law. (15)

Considering the extent of legislative dissatisfaction with the PROTECT Act it should come as little surprise that soon after its enactment legislative action commenced, and is indeed still pending, that would repeal the PROTECT Act's provisions relating to sentencing. That legislation, the Judicial Use of Discretion to Guarantee Equity in Sentencing Act of 2003 ("JUDGES Act"), (16) looks to restore federal sentencing to its pre-PROTECT Act condition, and to require additional research on national trends in sentencing that could assist in the creation of well-considered and well-intentioned legislation in the future. …

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