the Feeney Amendment
federal judicial discretion! Stop the Feeney amendment to S. 151
The House of Representatives passed legislation on
March 27 that would, among other things, radically limit judicial
discretion to grant downward departures from the Federal Sentencing
Guidelines. This legislation, referred to as the Feeney Amendment,
constitutes an extraordinary transfer of power to federal prosecutors,
dramatic changes to the laws and procedures that govern sentencing
and a drastic
encroachment on the independence of the federal judiciary. It places
virtually all sentencing discretion in the hands of federal prosecutors.
The amendment was attached to child abduction legislation at the
last minute in an effort to avoid a debate of its merits and a discussion
of its flaws. No input from the Sentencing Commission, the bar or
federal judges was sought.
Many FedCURE Board Members immediately sent a letter in opposition
to the full House of Representatives before the vote. And we have
been working diligently to stop this measure ever since -- but we
need you help. Because the measure is attached to popular child-abduction
legislation that will bypass the committee process, time is of the
essence. This bill could be enacted into law in the next few days.
First and foremost, you should call or fax a letter (a sample is
below) to Senator Orrin Hatch (UT), chair of the Senate Judiciary
committee, stating your strong opposition to this legislation.
MEMBERS WITH OTHER GOP SENATORS ON SENATE JUDICIARY COMMITTEE
If your senator is a GOP Members of the Senate Judiciary Committee
(see list below), they also have the ability to influence the outcome
and should be contacted, in addition to Senator Hatch.
Orrin G. Hatch (UT) (202) 224-5251
fax: (202) 224-6331
Charles E. Grassley (IA) (202) 224-3744
fax: (202) 224-6020
Arlen Specter (PA) (202) 224-4254
fax: (202) 224-1229
John Kyl (AZ) (202)224-4521
fax: (202) 224-2201
Mike DeWine (OH) (202)224-2315
Jeff Sessions (AL) (202) 224-4124
fax: (202) 224-3149
Lindsey Graham (SC) (202) 224-5972
fax: (202) 224-1189
Larry Craig (ID) (202) 224-2752
fax: (202) 228-1067
Saxby Chambliss (GA) (202) 224-3521
fax: (202) 224-0103
John Cornyn (TX) (202) 224-2934
fax: (202) 228-2856
After calling and/or faxing a letter stating your opposition to
the amendment, send an email to your senator using the Criminal
Justice Forum’s action center.
SUMMARY OF THE FEENEY AMENDMENT:
Offered by Rep. Feeney (R-FL) with the full support of Chairman
Sensenbrenner (R-WI), the legislation will dramatically restrict
the ability of federal judges to depart from the federal Sentencing
Today, if a judge feels that a guideline sentence is unjust or unwarranted,
sometimes he or she may "depart" on one or more grounds
to achieve a sentence that he or she feels is just. Departures are
permitted when judges find that the guidelines do not adequately
account for certain circumstances that must be considered in reaching
a just sentence. Departures help judges fit the punishment to the
Departure authority, while used rarely, is essential to ensure that
the Guidelines allow judges discretion, something that mandatory
sentencing does not permit. FedCURE has always stood for judicial
If the amendment passes into law much will change:
1. Judges sentencing first time, non-violent offenders will be utterly
forbidden from considering youth, military service, community involvement,
charitable deeds, or family responsibility.
2. Judges will be unable to depart from the guidelines for "aberrant
conduct" or for a combination of factors, none of which by
itself would warrant a departure.
3. Judges will be forbidden from awarding a one-point sentence reduction
for "extraordinary acceptance of responsibility" unless
the government attorney specifically authorizes the reduction.
4. Judges will be forbidden from awarding any downward departures
unless they are explicitly authorized in the federal Sentencing
5. The U.S. Sentencing Commission, which amends the Sentencing Guidelines,
is forbidden to authorize any new grounds for departure in those
guidelines until 2005.
REASONS FOR OPPOSING THE FEENEY AMENDMENT:
- Judicial discretion is necessary because no set of rules can predict
the circumstances of every individual defendant.
- The Feeney Amendment, in effect, transforms the guidelines into
a system of mandatory minimum sentences.
- Throughout the Guidelines' 15-year existence, most criticism from
judges, academics and observers has been aimed at their excessive
severity and rigidity.
- The Feeney Amendment would overrule a decision of the Supreme
Court, Koon v. United States, that was written by Justice Kennedy
and joined by Chief Justice Rehnquist and Justices O'Connor, Scalia
- Downward departure rates are well below the range contemplated
by Congress when it authorized the Sentencing Guidelines, except
for departures requested by the government.
- The overwhelming majority of downward departures (79%) are requested
by federal prosecutors to reward cooperation or to manage the high
volume of immigration cases in certain border districts.
- The government can appeal downward departures it doesn't consider
appropriate, and it wins approximately 80% of such appeals.
- The bill imposes burdensome reporting requirements on the judiciary
without any new funding.
- The Feeney Amendment would result in increased incarceration at
taxpayer expense without any proven need.
- Such a dramatic rewriting of federal sentencing law requires hearings
and input from judges, the bar,
the Sentencing Commission and other experts.
- The amendment is designed to increase penalties imposed on persons
sentenced in federal cases by limiting federal judges from exercising
long-standing judicial discretion to mitigate the punishment even
for first-time, nonviolent offenders who have otherwise exhibited
exemplary conduct, including military service and charitable works.
- The changes wrought by this amendment will be very costly in terms
of additional legal challenges, increased prison terms for even
nonviolent first offenders where compassion exercised by Article
III judges would be appropriate, and the untold costs to families
and society as a result of the increased incarceration.
PLEASE ACT NOW TO SAVE JUDICIAL DISCRETION! CONTACT THE SENATORS
ABOVE AND URGE THEM TO REMOVE THE FEENEY AMENDMENT.
You are strongly encouraged to personalize this letter by adding
items from the talking points above. Remember to fax, not mail,
your letter! Calls should also be made using the letter or talking
points as a guide.
The Honorable[ ]
United States Senate
Washington, DC 20510
Dear Senator [ ]:
I strongly urge you to take action to prevent the Feeney amendment
to S.151 from becoming law. This amendment to S. 151 will strip
federal judges of all discretion to treat defendants as individuals.
The law will remove much of the little discretion in sentencing
that judges retain and increases the harsh effect of already severe
sentencing policies. The amendment is designed to increase penalties
imposed on persons sentenced in federal cases by limiting federal
judges from exercising long-standing judicial discretion to mitigate
the punishment even for first-time, nonviolent offenders who have
otherwise exhibited exemplary conduct, including military service
and charitable works.
amendment was attached to child abduction legislation at the last
minute in an effort to avoid a debate of its merits and a discussion
of its flaws. Such a dramatic rewriting of federal sentencing law
requires hearings and input from judges, the bar, the Sentencing
Commission and other experts.
contact Senator Hatch and urge him to remove the Feeney amendment
from unrelated childabduction legislation (S. 151), which will be
the subject of imminent House-Senate conference negotiations.
Thank you for your attention to this very serious matter.
(Your name, address, and telephone number)