Do judges need protection? Legislative and judicial responses to the PROTECT Act's Feeney Amendment.

• Author: Heller, Jared I.

1. INTRODUCTION

   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. (17)

   After a brief but important review of the legislative histories, rationale, and important consequences of each of the legislative acts discussed, this comment will address some of the potential constitutional infirmities presented by the PROTECT Act. Additionally, this comment will criticize the PROTECT Act for creating an excessively harsh and rigid sentencing system, which has been condemned from all levels of the judiciary, by failing to recognize the importance of maintaining some judicial discretion in the determination of sentence length. This comment will conclude in support of the JUDGES Act and will call for the restoration of sentencing law to its condition prior to 2003.

2. THE LEGISLATION: HISTORIES, RATIONALES & CONSEQUENCES

   1. The Sentencing Reform Act of 1984

      Federal criminal sentencing underwent drastic change in 1984 with the enactment of the Sentencing Reform Act ("SRA"). (18) Following approximately a decade of intense legislative debate, which ultimately produced the support of an overwhelming majority, the SRA, a component of the Comprehensive Crime Control Act, was signed into law by President Ronald Reagan. (19) The SRA established the Federal Sentencing Commission ("Commission") and charged it with the authority to promulgate the Guidelines. (20)

      This "'sweeping' overhaul" departed from a centuries-old sentencing system affording federal district court judges almost complete discretion in their sentence determinations. (21) Prior to the SRA--and indeed historically since the creation of the Republic--federal judges were granted broad discretion in criminal sentencing, discretion unfettered except for statutorily mandated maximum penalties. (22) The sentences imposed by federal judges were then administered by the Parole Board--an agency within the Executive branch that had the discretion to modify a prisoner's sentence based on numerous considerations, including good behavior. (23)

      Responding to what they viewed as a system rampant with unpredictable and inequitable sentences, proponents of the SRA hoped to craft a mechanism that would "'assure that each sentence [was] fair compared to all other sentences.'" (24) Those in favor of the SRA complained that a judge's vast discretion and the effects of the parole system were "'unjustifi[ed]' and 'shameful'" under the current scheme. (25) They intended for the legislation to create predictability in sentence length, to establish homogeneity in the sentences received by similarly situated defendants, and to ensure that sentences were proportional to the crimes committed. (26)

      As enacted, the SRA fundamentally revised federal sentencing. Among the changes relevant to this comment, the SRA first declared a departure from the traditional view of incarceration as a means of rehabilitation, adopting instead the view that its general purposes were retributive and incapacitative in nature. (27) Second, it consolidated the discretion of the sentencing judge and the Parole Commission by creating the Federal Sentencing Commission with the directive that it promulgate the Sentencing Guidelines. (28) Congress determined that the Commission would comprise seven individuals, at least three of whom must be federal judges, and all of whom must be appointed by the President and confirmed by the Senate. (29) Third, the SRA bound district court judges to the Guidelines, permitting a judge to downwardly depart from the sentence under the Guidelines only after the judge was able to articulate a factor for departure that the Commission had not satisfactorily considered. (30) In assessing whether a factor had been adequately considered, however, Congress limited a court's resources for making such a decision to "'the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.'" (31) Lastly, the SRA introduced appellate review of trial court sentences by permitting both the government and the defendant to seek appeals relating specifically to sentence length. (32) Subsequently, the Supreme Court determined that the "clearly erroneous" appellate standard of review was applicable to such appeals, reasoning that a lower standard was inappropriate because the district courts were responsible for fact finding and, as such, their sentencing decisions should receive considerable deference. (33)

      In order to determine the appropriate sentence for a convicted defendant, the Guidelines require a judge to employ a complex point and grid system. (34) To initially establish a defendant's sentencing range, "[a] federal judge ... start[s] with a certain number of points for the offense itself, then [adds] points based on certain relevant aspects of the crime. The judge next adjusts the severity of the sentence within the range mandated by the Guidelines based on the offender's criminal history." (35) Only then may a judge consider aggravating and mitigating factors in determining whether to upwardly or downwardly depart from the sentencing range. (36) Among the factors to be considered are the victim related aspects of the crime, the extent the defendant was involved in the crime, his willingness to cooperate with the authorities, and the number of counts upon which the defendant has been convicted. (37)

   2. Was the SRA Constitutional?

      The Commission and Guidelines survived a constitutional challenge in Mistretta v. United States. (38) There, the defendant argued that the SRA mandated an improper delegation of congressional power. (39) In rejecting this contention, the Court, relying on the nondelegation doctrine, determined that Congress, through the SRA, had given the Commission an "intelligible principle" that was sufficiently specific in detail and direction to permit an agency within the judicial branch to assist Congress as contemplated by the statute. (40)

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