Barking up the wrong tree: the misplaced furor over the Feeney Amendment as a threat to judicial independence.

• Jurisdiction: United States
• Author: Mason, David P.
• Date: 01 November 2004

INTRODUCTION I. OUTLINE OF THE CONTROVERSY A. What Is the Feeney Amendment? B. Implementation of the Feeney Amendment 1. The Department of Justice 2. The U.S. Sentencing Commission 3. The Federal Courts of Appeals C. Response to and Criticism of the Feeney Amendment 1. Congressional Support and Critiques 2. Public Critiques: The Press, Academia, and Public Interest Groups 3. Federal Judiciary Response 4. Summary of the Critiques and the Argument that the Feeney Amendment Is an Attack on Judicial Independence II. DEFINING JUDICIAL INDEPENDENCE III. THE OVERSTATED THREAT TO JUDICIAL INDEPENDENCE A. Judicial Independence Is Not a Talisman: The Role of Accountability to the Law and Inter-Branch Interdependence 1. Judicial Accountability as Accountability to the Law and the Argument Against Judicial "Policymaking" 2. Constitutional Accountability: The Accountability of the Federal Judiciary to the Political Branches B. The Feeney Amendment as an Appropriate Act of Legislative Policy C. This Legitimate Legislative Act of Sentencing Reform Does Not Destroy Judicial Independence 1. The Difference Between Discretion and Independence 2. Fears of a "Judicial Blacklist" as a Threat to Judicial Independence Are Overstated CONCLUSION AUTHOR'S NOTE INTRODUCTION

On April 30, 2003, President Bush signed into law the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, also known as the PROTECT Act. (1) Generally lauded by many supporters and opponents of the "Feeney Amendment" alike, the PROTECT Act works to nationalize the AMBER Alert system, (2) combat child abduction, and increase penalties for sexual crimes and pornography involving children. One amendment to the bill--the so-called "Feeney Amendment"--however, has created a firestorm of controversy in the wake of the bill's passage. The Feeney Amendment purports to make major changes in the process of criminal sentencing under the U.S. Sentencing Guidelines. Included as "Section IV: Sentencing Reform" of the PROTECT Act, the Feeney Amendment attempts to reduce substantially the practice of "downward departures" from the Sentencing Guidelines, a practice by which a judge sentences a defendant below the prescribed penalties for various crimes. (3)

Many critics of the Feeney Amendment have labeled it an attack on judicial independence because it limits criminal sentencing discretion of federal Article III judges and requires reports on the departure practices of judges. Vocal criticism has emanated from various quarters: academia, the federal judiciary, the media, and legislators. (4) This Note argues that the general tone of the criticism and the repeated references to it as an "attack on judicial independence" are not warranted.

Most of the critics' assertions about protection of judicial independence--although cloaked in arguments about the separation of powers and usurpation of judicial discretion--are, in fact, policy arguments against the Sentencing Guidelines themselves. (5) Moreover, many critics--including federal judges--use the rubric of judicial independence to criticize the working of the Sentencing Guidelines as too harsh and rigid. These critics decry the removal of district judges' access to downward departures to "remedy" the wrongs of the Sentencing Guidelines system. This Note argues neither that, as a normative issue, current sentencing policy is appropriate, nor that the Feeney Amendment and the diminished discretion of judges to engage in downward departures were, as a matter of policy, correct. Instead, this Note advances the argument that these policy criticisms are not appropriately tied to the concept of judicial independence. Judicial independence is undoubtedly an extremely important tenet of our constitutional system, but it is not a talisman. Rather, it is a limited concept that does not avoid the precept that the federal judiciary is still subject to the will of Congress in various ways--including the making of policy on criminal sentencing.

In Part I, this Note describes the most controversial aspects of the Feeney Amendment, those most often cited in critiques of the amendment, and their implementation up to this point. In addition, this Part outlines some of the main arguments against and in support of the amendment. Part II examines varying definitions of judicial independence and provides a standard by which to measure this amendment as a purported infringement of judicial independence. Part III analyzes why much of the contemporary criticism of the amendment as an attack on judicial independence is misplaced, as the amendment is properly within Congress's legislative power, does not have the actual effects its critics purport it has, and leaves intact the key safeguards of judicial independence. Finally, this Note concludes that, although there may be other criticisms that could be lodged against the Feeney Amendment as a matter of policy, the most popular critique--that it is an attack on judicial independence--is unsupported by the historical and current understanding of that concept.

1. OUTLINE OF THE CONTROVERSY

   1. What Is the Feeney Amendment?

      The Feeney Amendment (6) enacts significant legislative changes to the Sentencing Guidelines system, established by the Sentencing Reform Act of 1984, in the area of departure authority--the ability of sentencing courts to sentence outside of the prescribed guidelines range--and in the appellate review of sentencing court departure decisions. (7) The most controversial reforms to the sentencing system include broad directives to the U.S. Sentencing Commission, the Department of Justice (DOJ), and the federal judiciary related to the use of departures in general. (8) These reforms have the broadest impact on sentencing and are most often cited in critiques of the Feeney Amendment as an encroachment on judicial independence.

      The substance of these reforms is briefly described below. The first of these changes is the alteration of the appellate standard of review for district court departure decisions and new requirements imposed on district courts in making departures. The PROTECT Act now requires that the district court provide specific reasons in writing for any departure along with its written order of judgment and commitment, unless the sentencing court "relies upon statements received in camera." (9) The Act also requires that the court base all departures on the statutory purposes of the Sentencing Guidelines. (10)

      More controversially, the PROTECT Act alters the standard of review that appellate courts must employ for the review of departure decisions. The act requires de novo review of a district court's departure decision in cases where "the district court failed to provide the written statement of reasons" for the departure or where the departure is based upon a factor that "does not advance the objectives" of the guidelines, "is not authorized" under the guidelines, or "is not justified by the facts of the case." (11)

      In the event an appellate court finds the departure impermissible, the appellate court is required to set aside the sentence and remand to the district court with instructions to re-sentence. (12) The PROTECT Act goes one step further to ensure that the decision of the appellate court is, in fact, applied at re-sentencing. The Act requires the sentencing court to sentence within the applicable guidelines range and not depart from that range unless the grounds for departure were specifically included in the previous sentencing order and were held by the court of appeals, in remanding the case, to be permissible grounds for departure. (13) This highly significant portion of the amendment alters the previous standard of review under Koon v. United States, in which the Supreme Court held that the decisions of a district court in applying the guidelines to the facts should be reviewed under an abuse of discretion standard. (14) Another major aspect of the amendment was the directive to the U.S. Sentencing Commission, the agency tasked with writing and implementing the guidelines, to "ensure that the incidence of downward departures are [sic] substantially reduced." (15) In an attempt to meet this goal, Congress mandated that prior to May 2005 the Sentencing Commission "shall not promulgate any amendment to the sentencing guidelines ... that adds any new grounds [for] ... departure...." (16) In addition to limiting the addition of new grounds for departure, Congress required that within 180 days the Sentencing Commission had to "review the grounds of downward departure that are authorized by the sentencing guidelines ... and promulgate, pursuant to [the Sentencing Commission's statutory authority] appropriate amendments to the sentencing guidelines, policy statements, and official commentary to ensure that the incidence of downward departures are [sic] substantially reduced." (17)

      Some of the most controversial aspects of the PROTECT Act are the provisions requiring reporting on departure practices, especially reporting by the DOJ, The first reporting provision requires that "[t]he Chief Judge of each district court ... ensure" that all judges within their district submit a report of their sentencing decisions to the Sentencing Commission "within thirty days [of the] entry of judgment in [a] criminal case...." (18) This report must include a statement of reasons for the sentence imposed, the identity of the sentencing judge, and various other materials. (19) The Sentencing Commission must analyze this information annually, submit a report to Congress, and make the reports and documentation available, upon request, to the House and Senate Committees on the Judiciary and the DOJ. (20)

      Moreover, the PROTECT Act requires the adoption of new policies and procedures by the DOJ to ensure that DOJ attorneys "oppose sentencing adjustments, including downward departures, that are not supported by the facts and the law," "make a...