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Hatch Revises Sentencing Bill Again

This just in from Kyle O'Dowd, Legislative Director for the National Association of Criminal Defense Lawyers on the Hatch-Sensenbrenner Amendment on sentencing rushed through the House-Senate Conference on the Amber Alert Bill yesterday. Please note the differences between the versions.
At 1:34 this morning, Sen Hatch's staff circulated a new version of the bill.  The overnight changes improve the proposal but it remains highly objectionable. Here is a revised version of yesterday's list based on a preliminary analysis of the new text:

1. Establishes new, separate departure procedure and standards for child-related offenses and sex offenses. Only permissible departures are those that the Commission specifically enumerates.

2. Limits age and physical impairment departures in child and sex cases.

3. Prohibits gambling dependence departures in child and sex cases.

4. Prohibits aberrant behavior departures in child and sex cases.

5. Prohibits family ties departures in child and sex cases.

7. Prohibits diminished capacity departures in child and sex cases.

8. Establishes de novo appellate review of 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 and appealing downward departures.

13. Directly amends pornography 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.

Thus, the changes between the text adopted at the conference meeting and the text circulated at 1:34 AM improve the bill by limiting the restrictions on enumerated departures grounds to child and sex cases only.

It also strikes altogether the earlier text limiting military service departures. But the amendment still limits judicial departures in non-child and non-sex cases in many ways. Most notably, the bill still overturns the Koon case by establishing a de novo standard for appellate review of departures, and still directs the Sentencing Commission to amend the guidelines and policy statements "to ensure that the incidence of downward departures are [sic] substantially reduced."

This remains an outrageous attempt to revise federal sentencing rules without hearings or meaningful debate and to deprive federal judges of discretion to impose just sentences.
The full Congress must still act on the bill, and it is likely they will do so before Easter. Please, get busy and contact your senators and ask them to reject this bill. If there is a fight over it, we think it will be in the Senate.
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