The Feeney Amendment and the Continuing Rise of Prosecutorial Power to Plea Bargain

By Bibas, Stephanos | Journal of Criminal Law and Criminology, Winter 2004 | Go to article overview

The Feeney Amendment and the Continuing Rise of Prosecutorial Power to Plea Bargain


Bibas, Stephanos, Journal of Criminal Law and Criminology


Congress has come close to a drive-by rewrite of sentencing law, and a sentencing revolution may still be in the works. On April 10, 2003, Congress passed the PROTECT bill (popularly known as Amber Alert), which creates a national notification system for child kidnappings. On March 26, while the bill was pending, the House of Representatives passed the Feeney Amendment to the bill. (1) The original amendment was an unprecedented attempt by Congress to rewrite the Sentencing Guidelines by itself without the input or expertise of the Sentencing Commission. The House-Senate Conference Committee narrowed the amendment, limiting many of its changes to child pornography and child sex cases. The revised amendment nonetheless changes the Sentencing Guidelines substantially, and it instructs the Sentencing Commission to make many more changes within the next six months. The likely result is many fewer Guideline departures, less judicial discretion, and more prosecutorial control. The losers are defendants and judges, and the winners are prosecutors. Prosecutorial leverage to plea bargain will be at an all-time high, resulting in fewer trials, more bargains, and higher sentences. Judges used to check prosecutorial harshness, but now they are increasingly powerless unless prosecutors deign to grant leniency.

I. THE SCOPE OF THE REVISED FEENEY AMENDMENT

The enacted version of the Feeney Amendment is substantially narrower than the original proposal. Among other changes, the original amendment would have eliminated all unenumerated downward departures and all downward departures for family ties, diminished capacity, aberrant behavior, educational or vocational skills, mental or emotional conditions, employment record, good works, or overstated criminal history. (2) A bevy of defense lawyers, law professors, current and former Sentencing Commissioners, the President of the American Bar Association, Chief Justice Rehnquist, and others wrote to Congress opposing the amendment. (3) Perhaps as a result of these protests, the House-Senate Conference Committee narrowed the amendment. The enacted bill limits the changes described above to crimes involving pornography, sexual abuse, child sex, and child kidnapping and trafficking. (4) It also raises penalties for child pornography and child sex abuse. (5)

Nonetheless, the Feeney Amendment reaches well beyond these particular crimes. Its changes include the following:

Appellate review. The revised amendment overturns Koon v. United States, (6) substituting de novo appellate review for Koon's abuse-of-discretion standard. (7) It also bars district courts whose departures have been reversed on appeal from giving a new reason to depart again on remand. (8)

Reporting requirements. The amendment requires the Sentencing Commission to collect and report more data on departures, and it requires the Department of Justice to report its efforts to oppose unwarranted departures. (9)

Prosecutorial control over departures. The amendment makes a prosecutorial motion a prerequisite for a three-level reduction for acceptance of responsibility. (10) It also instructs the Sentencing Commission to authorize four-level "fast-track" downward departures in illegal-reentry immigration cases upon motion of the prosecutor. (11)

Directions to the Sentencing Commission to reduce downward departures. More generally, the amendment instructs the Sentencing Commission to amend the Guidelines within 180 days "to ensure that the incidence of downward departures are [sic] substantially reduced." (12) It forbids the Sentencing Commission ever to amend the acceptance-of-responsibility provision above or to reduce the increased penalties for child pornography and child sex abuse. (13) It imposes a two-year moratorium on Guideline amendments that create new downward departure grounds or loosen the amendment's restrictions on grounds for departure (14) It makes its amendments effective immediately, regardless of whether the Sentencing Commission has yet issued conforming amendments. …

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