The Feeney Amendment and the continuing rise of prosecutorial power to plea bargain.

• Author: Bibas, Stephanos

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.

1. 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. (15) Finally, the amendment caps the number of federal judges on the Sentencing Commission at three. (16)

   The first thing to note about these amendments is their scope. Congress has cut back significantly on the changes envisioned in the original Feeney Amendment. Nonetheless, this package of changes affects everything from the structure of the Sentencing Commission to the standard of review to the roles of prosecutors to the acceptable grounds for departures. Though Congress packaged the amendment as part of a child-protection bill, its reach and import are far broader.

2. SHIFTING POWER FROM DISTRICT JUDGES TO PROSECUTORS

   The second important point to note is the target of the amendment: unilateral judicial downward departures. Many of its provisions apply asymmetrically to restrict downward but not upward departures. For example, the amendment eliminates downward departures for child crimes and sex offenses based on unenumerated grounds (except for cooperators) but preserves upward departures on unenumerated grounds. (17) It places a two-year moratorium on the creation of new downward-departure grounds but not upward-departure grounds. (18) It allows the Sentencing Commission to amend the new child-pornography and child-sex-abuse guidelines so long as it never lowers sentences for these crimes. (19) It specifically requires the Attorney General to report unsupported downward departures. (20) It requires the Sentencing Commission to amend the Guidelines so as to "substantially reduc[e]" the frequency of downward departures. (21) And it restricts departures for aberrant behavior, family responsibilities, community ties, and diminished capacity, all of which would serve only to mitigate sentences. (22)

   This one-way skew is not necessarily bad. Congress was simply responding to the huge number of downward departures, as compared with a minuscule number of upward departures. In fiscal year 2001, only sixty-four percent of defendants were sentenced within the applicable range. 17.1% received downward departures for substantial assistance, and 18.3% received other downward departures. In contrast, only 0.6% received upward departures. (23)

   Some of this judicial skew toward leniency may be an illusion created by the structure of the Guidelines. Chapter Three of the Guidelines contains a series of general adjustments to offense levels. This chapter creates upward adjustments for vulnerable victims, hate crimes, official victims, restraint of victims, terrorism, large role in the offense, abuse of position of trust, use of special skill, use of a minor to commit a crime, obstruction of justice, and reckless endangerment during flight. (24) The chapter contains only two downward adjustments, namely reductions for a minor role in the offense and acceptance of responsibility. (25) In other words, many aggravating factors are adjustments that are built into the applicable guideline range, whereas most mitigating factors are left to the departure process. This asymmetry partially explains why downward departures are more common.

   Nevertheless, it is fair to say that judges stretch much more often in favor of leniency. Many judges believe the Sentencing Guidelines are too harsh and want to soften penalties they dislike. In addition to judicial preferences, systemic forces discourage upward departures and encourage downward departures. Judges fear that if they depart upwards, defendants will almost certainly appeal the departure (using their right to free appointed counsel on appeal). But if they depart downward, Assistant U.S. Attorneys may be too busy to bother writing appellate briefs, particularly if the departure is modest. (26) Defendants have incentives to fight for the lowest possible sentence, whereas prosecutors may be pushing not to maximize sentences but rather to dispose of their dockets efficiently. Thus, prosecutors may acquiesce in (or at least not vigorously oppose) many departures simply to get rid of cases by plea bargain, without the burden of a trial. (27) In other words, the adversary system gives defense counsel strong incentives to police upward departures, so district courts risk appellate reversal if they dare to depart upward. But because prosecutors have no personal stake in stiff sentences and can lessen their workloads by agreeing to lighter dispositions, they have less incentive to police downward departures. District judges, knowing this, are less wary of departing downward than upward, leading to the massive asymmetry described above. It is...