The Death of the Feeney Amendment

A short reference in the Booker opinion references Congress' 2003 Feeney Amendment that increased many criminal sentences under the Federal guidelines. Dan Christianson in the Daily Business Review analyzes that portion of the opinion and concludes that the Feeney Amendment's changes are dead.

The Feeney Amendment's demise is spelled out in a little-noticed part of the high court's Jan. 12 decisions in U.S. v Freddie J. Booker and U.S. v. Ducan Fanfan.

In the words of Justice Stephen G. Breyer, who wrote the majority opinion making the guidelines advisory, the 2003 amendment to the Protect Act... had made guidelines sentencing "even more mandatory" than it was before. Therefore, with the Court's decision that the guidelines violated defendants' Sixth Amendment right to trial by jury, the Feeney Amendment had "ceased to be relevant," Breyer said.

Christianson notes that the Feeney Amendment may have contributed to the Supreme Court's decision in Booker:

[The Feeney Amendment] instructed the U.S. Sentencing Commission to change its policies to reduce downward departures. It also required federal appellate courts to conduct fresh reviews of all downward departures by district court judges. Most controversially, it established a system for reporting to Congress how individual federal judges handled sentencing.

That last mandate to monitor downward departures was particularly worrisome to judges, who saw it as an intimidation tactic and a serious encroachment on the independence of the judiciary. Chief Justice William R. Rehnquist and the U.S. Judicial Conference publicly opposed the Feeney provisions. Despite strong concerns expressed by Democratic leaders, the Protect Act passed Congress overwhelmingly.

Despite pleas from all sectors for Congress to move slowly, it has been widely anticipated that Congress would react to Booker by legislating mandatory minimum penalties for every offense. (As we surmised here, the legislation already may have been drafted.)

Congressman Feeney is unlikely to take this defeat lying down. In fact, his comments while the decision was pending, show his intended course:

"If they come down and undermine the whole way sentencing guidelines work, the only option Congress may have is to enact enhanced mandatory sentences," Feeney warned. "If the courts throw out the sentencing wholesale, we will have a really big battle."

Hopefully, cooler heads will prevail. For more on Booker's effect on the Feeney Amendment, see Sentencing Law and Policy's post. Mope details on the Feeney Amendment are here .

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    Re: The Death of the Feeney Amendment (none / 0) (#1)
    by Talkleft Visitor on Sun Jan 23, 2005 at 11:43:08 PM EST
    Let us all wait and see what will happen or will not happen in some cases.

    Re: The Death of the Feeney Amendment (none / 0) (#2)
    by pigwiggle on Mon Jan 24, 2005 at 05:24:34 AM EST
    I’m afraid TL was justifiably concerned that Blakely could result in stiffer guidelines. This is what Michael Goldsmith, former vice chair of the US Sentencing Commission, had to say; “Rather than view Blakely as the guidelines’ death knell, Congress and the Commission should seize this moment as a historic opportunity to achieve a variety of important goals: simplify the guidelines, increase certain penalties where appropriate, and return a modicum of discretion to sentencing judges.” Return a modicum of discretion? Give with the right hand and take with the left. Whole thing here.

    Re: The Death of the Feeney Amendment (none / 0) (#3)
    by Talkleft Visitor on Mon Jan 24, 2005 at 06:13:43 AM EST
    The Feeney Amendment was the straw that broke the guidelines' back. Perhaps if Congress now overreacts it will ultimately blow the doors off mandatory minimums.