2003: Congress limits judicial discretion with PROTECT Act
New legislation, slipped quietly into a popular child protection bill as the Feeney Amendment, brought unprecedented changes to how judges may sentence defendants. This part of the PROTECT Act reduced the ability of judges to depart from sentencing guidelines in certain cases. It also required the U.S. Sentencing Commission to amend the federal guidelines to ensure the substantial reduction of downward departures. FAMM and others fought vigorously against the amendment. Although some of its most egregious aspects were eliminated, the threat to judicial discretion remained. 44
The "amendment strikes a blow at judicial independence and sends an unmistakable message that Congress does not trust the judgment of the judges it has confirmed to office," wrote the American Bar Association. William Rehnquist, the conservative chief justice of the U.S. Supreme Court, weighed in against the required collection of information about individual judges' sentencing practices: "There can...be no doubt that the subject matter of the questions, and whether they target the judicial decisions of individual federal judges could amount to an unwarranted and ill-considered effort to intimidate judges in the performance of their judicial duties." 45
Act raises judicial hackles
A federal judge appointed by President George Bush, John Martin of the Southern District of New York, resigned because he no longer wanted to be part of "our unjust criminal system." Others used their decisions to speak out against the curb. "The passage of the PROTECT Act creates new and greater problems in federal sentencing," wrote Judge Myron H. Bright of the 8th Circuit Court of Appeals in one case. He called on federal judges to "disclose [their] views about the injustice in the sentencing decision or decisions you are obligated to impose by Congressional mandate and/or the sentencing guidelines." 46
Nonetheless, the U.S. Sentencing Commission on October 8 changed the federal sentencing guidelines as required by the PROTECT Act to "substantially limit the incidence of downward departures." 47
The prestigious Judicial Conference of the United States unanimously voted to urge repeal of the PROTECT Act, signaling a deepening division between the judicial and executive branches and, in particular, the Department of Justice, which announced limits on local prosecutorial discretion to arrange plea agreements. The conference represents federal judges and is headed by William H. Rehnquist, the U.S. Supreme Court's conservative chief justice. 48
House Republicans, led by Rep. Lamar Smith (R-Texas), continued the assault against judicial independence by establishing a new task force to review judges' decisions for signs of "judicial abuse." Smith promised to expose judges who the force sees as making law from the bench and bring them before Congress. "This is the beginning of many steps, many news conferences and many reports," he said. Added Rep. Tom DeLay (R-Texas, a committee member and House Majority leader, "We in the House are putting American judges on alert: We are watching you." 49
Justice Kennedy opposes mandatory minimum sentences
Supreme Court Justice Anthony Kennedy, who supports sentencing guidelines, spoke out against mandatory minimum sentences, the length of sentences under the federal guidelines, the transfer of sentencing discretion from judges to prosecutors, the racial disparity of our sentencing laws and the human toll they take on young men and women sentenced to decades behind bars. "I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences," he said in an address at the American Bar Association's (ABA) annual meeting in August. "In too many cases mandatory minimum sentences are unwise and unjust." He challenged the ABA to study the U.S. prison system and go to Congress and say, "Please senators and representatives, repeal federal mandatory sentences." 50
States rethink tough-on-crime measures
The "tough-on-crime" measures of the last quarter of the 20th century helped balloon state budgets at a time of falling revenues. As the state budget crisis reached epidemic proportions, states began to look at smarter, less costly sentencing and correctional policies. A FAMM report found that some 17 states eliminated mandatory sentencing laws or restructured other harsh penalties; most of these targeted low-level, nonviolent drug offenders. Many states chose to treat rather than incarcerate people with substance abuse problems. In 16 states policymakers eased prison population pressures with mechanisms to shorten time served in prison, increase the release rate and handle those who violate release conditions without returning them to prison. 51