IT TAKES A LOT TO RILE UP THE FEDERAL judiciary. By virtue of their training and temperament, judges don't often whine, complain, or show anger in public. And they almost never air their grievances in the court of public opinion. So it is extraordinary to see some life-tenured jurists so upset these days about a new law they say intrudes on their constitutionally protected independence.
Last year, Congress piggybacked on to the Amber Alert bill a provision known as the Feeney Amendment. Named for Florida Republican Representative Tom Feeney, the rider was designed to limit the circumstances in which a federal judge could depart downward in a criminal sentence under the federal sentencing guidelines. Among other things, the Feeney Amendment directed the U.S. Sentencing Commission, the congressionally created independent agency that oversees the federal criminal-sentencing scheme, to change the rules to preclude judges from considering certain mitigating factors--like a defendant's cooperation, even--that would support downward departures. The amendment limited the number of judges who could serve at any one time on the commission itself and created controversial new interbranch reporting requirements that some judges feel harken back to the days of blacklisting.
The Feeney provisions represent Congress' latest effort to limit the already diminished discretion federal trial judges have in sentencing for criminal cases. Now the judiciary is pushing back. "Feeney makes judges go from being 'the pinnacle' of the plea-bargaining process to being merely 'a nuisance,'" complains U.S. District Judge William Young, the chief federal trial judge in Massachusetts. He sees the amendment as further proof that Congress wants to vitiate the judiciary's role in sentencing while maintaining the aura of judicial independence and power. "Congress doesn't want to get rid of [the] symbolism [of judge-inspired sentences] because that conveys to our people that there has been judgment, that there has been reflection," Young adds.
But it is precisely because Feeney takes away a judge's right to reflect upon an individual's life history prior to sentencing that some judges perceive it as an improper and unconstitutional violation of the separation-of-powers principle. Because Feeney narrows the time range judges may consider in sentencing, the provisions give prosecutors a concomitant power to affect those sentences simply by virtue of the charges they bring against a defendant. In other words, prosecutors can all but ensure that they get the sentence they seek by doing their sentencing guidelines "math" in advance of trial, even in advance of the indictment. And this new calculus isn't sitting well with the judiciary.
As first reported in the New York Law Journal, a panel of federal judges on the 2nd U.S. Circuit Court of Appeals last fall vented about this changing calculus during an oral argument in a drug case that began long before Feeney. "You're telling me that the system we have set up, that has been set up by Congress, which removes discretion from the judges, has given discretion to your office," Judge Guido Calabresi told U.S. Attorney Robert Appleton during a remarkable public exchange. "This case is a perfect example of you telling me that your office made some decisions with respect to what is right and just and true, and the district court is thereby prohibited from having any say in the matter."
Another jurist, U.S. District Judge John Keenan, sitting in Manhattan, has repeatedly criticized the changes. "The Feeney Amendment has created unnecessary pressure on judges and unduly restricts them," Keenan says. "The shift in sentencing authority [from judges] to prosecutors is what I primarily object to." Things have reached the point that U.S. District Judges Paul Friedman and Thomas Penfield Jackson, who both sit as trial judges in Washington, no longer tell jurors in criminal cases that they, the judges, determine sentences they explicitly tell jurors that they aren't really responsible for the sentences imposed upon convicted defendants. …