Feeney Amendment: Substitute Version Passes

Here are the details of the House-Senate Conference on the Feeney Amendment, submitted by Kyle O'Dowd, Legislative Affairs Director for the National Association of Criminal Defense Lawyerss (NACDL):
The S.151 conferees met today and approved a Hatch-Sensenbrenner amendment to the Feeney provisions in the House-passed bill.  Senator Kennedy's second-degree amendment to strike the Feeney provisions altogether and direct the Sentencing Commission to study departures failed on a strictly party line vote, all Dems voting aye and all Repubs voting nay.

Sen. Hatch described his amendment as addressing the concerns raised by judges and others.  He suggested that it only affects departures in sex cases involving minor victims, while requiring the Commission to study other departures.  IN FACT, THE HATCH-SENSENBRENNER AMENDMENT RETAINS MUCH OF THE UNDERLYING FEENEY AMENDMENT AND DRAMATICALLY LIMITS DEPARTURES IN ALL CASES.  Indeed, the new amendment directs the Sentencing Commission to amend the guidelines and policy statements "to ensure that the incidence of downward departures are [sic] substantially reduced."

The following are the key components of the Feeney amendment as amended by
Hatch-Sensenbrenner.  It is based on a preliminary analysis of the complete text.

1. Establishes new, separate departure procedure and standards for child abduction and sex offenses. Only permissible departures are those that the Commission specifically enumerates. As drafted, it appears that downward departures in sex cases require a government motion based on substantial assistance, but during the conference meeting Sen. Hatch said that was not intended.

2. Limits age and physical impairment departures in all cases.

3. Prohibits gambling dependence departures in all cases.

4. Deletes the aberrant behavior departure guideline.

5. Prohibits family ties departures in all cases.

6. Prohibits military service and other good works departures in all cases.

7. Prohibits diminished capacity departures in sex cases only.

8. Establishes de novo appellate review of all departures.

9. Prohibits downward departure on remand based on new grounds.

10. Requires government motion for extra 1-level adjustment based on extraordinary acceptance of responsibility and prohibits the Commission from ever altering this amendment.

11. Chills departures by imposing more burdensome reporting requirements on judges who depart, and gives DOJ access to Commission data files that identify each judge's departure practices.

12. Requires DOJ to report downward departures to Judiciary Committees unless within 90 days AG reports to Congress on new regulations for opposing or appealing downward departures.

13. Directly amends pornnography guidelines and commentary and prohibits the Commission from ever altering that text.

14. Prohibits the Commission, for a period of two years, from adding new
departure grounds or passing amendments that are inconsistent with the
departure restrictions.

15. Directs the Sentencing Commission to amend the guidelines and policy
statements "to ensure that the incidence of downward departures are [sic]
substantially reduced."

16. Limits the number of judges on the Sentencing Commission to three.
In our opinion, the Hatch-Sensenbrenner Amendment is just as bad as the Feeney Amendment--the Conferees got hoodwinked. Say goodbye to judicial discretion in sentencings. We will now have one-size-fits-all justice, with the Justice Department and its prosecutors calling all the shots. Who's going to foot the bill? You, the taxpayer, of course. Someone has to pay for the cost of keeping each new prisoner in jail for these added years of incarceration. Same thing for the extra costs for appointed counsel --why would a defendant take a plea bargain if he can't get a sentencing break? Might as well go to trial. It costs more to go to trial than plead. We'll need to hire more judges and prosecutors and prison guards. You have a civil dispute you want heard? Wait in line a few years--criminal cases come first and the courts will be all booked up.

And what about the low-level non-violent offender who has no one to rat out because he doesn't know anything about anyone higher up? He's screwed. You don't care? Wait until it happens to your spouse, brother-in-law or even worse, child. Diabetes and a heart condition? Too bad, doesn't matter. He works three jobs, has never been arrested before, once saved a kid from a burning building, got three purple hearts during two enlisted tours of duty and takes care of his invalid mother? Too bad, doesn't matter. Sheriff, take him away.

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