CLS and National Law Journal Roundtable
Columbia Law School and The National Law Journal presents a roundtable discussion on "Federal Judicial Independence: Who Truly Yields Power in the Courtroom?"
CLE Credit Was Available for Participation.
Hon. John S. Martin, Jr.
Of counsel to Debevoise & Plimpton
Roslynn R. Mauskopf
U.S. Attorney for the Eastern District of New York
Criminal defense lawyer and past president of the National Association of Criminal Defense Lawyers.
John R. Steer
Vice-chair of the U.S. Sentencing Commission
Gerard E. Lynch
The Paul J. Kellner Professor of Law at Columbia Law School and U.S. District Court Judge, Southern District of New York
Carla T. Main
Associate Editor of The National Law Journal
CLE: This program provided two transitional New York Continuing Legal Education (CLE) credits to be applied to the Areas of Professional Practice Requirement. Advance registration was required for CLE credits.
For Additional Information: http://www.law.com/jsp/nlj/roundtable.jsp
On April 30, after reported lobbying by the U.S. Department of Justice, Congress passed the "Feeney amendment," which constricts the discretion of federal judges to give more lenient sentences, or "downward depart" from the U.S. Sentencing guidelines. The law calls for the U.S. Sentencing Commission to report downward-departure trends to Congress, which in turn means taht judges must self-report such departuresand their grounds for themto the Commission. The provision has caused a firestorm of debateover the appropriate extent of executive and legislative branch intrusion into the province of the federal judiciary. It has brought to a head a dispute that has been simmering over judicial independence since the Guidelines were enacted; indeed, many found the Guidelines too rigid to begin with. Fanning the fire is a recent directive issued by the U.S. Attorney General to federal prosecutors requiring them to report all downward departures to the U.S. Department of Justice. The fate of those who come before the federal courts for criminal justice may hang in the balance.
Web Links, Articles, and Selected Bibliography
- Text of the Feeney Amendment: http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/departures/$FILE/final_feeney.pdf
- Text of the Ashcroft Memo: http://news.findlaw.com/hdocs/docs/doj/ashcroft92203chrgmem.pdf
- Remarks of Chief Justice William Rehnquist at the Federal Judges Association Board of Directors Meeting on May 5, 2003 regarding the Sentencing Guidelines: http://www.nacdl.org/public.nsf/legislation/ci_03_24?OpenDocument
- Remarks of Justice Anthony Kennedy at the American Bar Association Annual Meeting on Aug. 9, 2003 regarding the Sentencing Guidelines: http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/departures/$FILE/Justice_Kennedy_ABA_Speech.pdf
- U.S. Sentencing Commission Report to Congress on "Downward Departures from the Federal Sentencing Guidelines" (Oct. 2003), submitted in response to section 401(m) of the PROTECT Act of 2003, Pub. L. No. 108-21: http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/departuresattachments/$FILE/USSCdepartrpt03.pdf
- Department of Justice Criminal Division annual letter to Sentencing Commission of Aug. 1, 2003: http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/departures/$FILE/DOJ_Crim_Div_letter_to_USSC.pdf
- Memorandum issued by Attorney General John Ashcroft regarding charging and plea bargaining: http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/departures/$FILE/AshcroftCharging%20Memo.pdf
- Memorandum issued by Attorney General John Ashcroft on July 28, 2003 to all federal prosecutors, which sets out policies and procedures that all DOJ attorneys "must adhere to . . . with respect to sentencing recommendations, sentencing hearings, and sentencing appeals": http://www.nacdl.org/public.nsf/legislation/ci_03_32/$FILE/AG_Guidance_Stcg_Recs.pdf
- Departures Cases decided after enactment of PROTECT Act on Apr. 30, 2003: http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/departures/$FILE/Post_Feeney_cases.wpd
- Rosenzsweig, David, "On the Law; L.A. Attorneys Divided on Ashcroft Directive; Some defense lawyers fear that placing restrictions on prosecutors who are seeking plea bargains will strain the system," Los Angeles Times (Oct. 17, 2003), B2
- Fields, Gary and Jess Bravin, "Sentencing Panel Leaves Judges With Some Room for Leniency," Wall Street Journal (Oct. 9, 2003), p. A1
- Hechler, David, "Plea Bargains: Some See Little Change, Others a Mired System; Ashcroft Echoes Thornburgh, Circa 1989," National Law Journal, Vol. 26, No. 5 (Sept. 29, 2003), p. 25
- Hamblett, Mark, "Federal Judges Attack Sentencing Restrictions: Judicial Conference calls for Feeney Amendment Repeal," New York Law Journal, Vol. 230 (Sept. 25, 2003) p. 1
- Schmidt, Susan, "Ashcroft Issues Tougher Prosecutorial Guidelines," Washington Post (Sep. 23, 2003), p. A03
- Hamblett, Mark, "Ashcroft Memo Discourages Plea Bargains," New York Law Journal, Vol. 230 (Sep. 23, 2003), p. 1
- Groner, Jonathan, "Sentencing Commission Panel Readies for Battle," New York Law Journal, Vol. 230 (Aug. 20, 2003), p. 1
- Bowman, III, Frank O., "When Sentences Don't Make Sense," Washington Post (Aug. 15, 2003), A27
- Cohen, Laurie P. and Gary Fields, "Ashcroft Intensifies Campaign Against Soft Sentences by Judges," Wall Street Journal (Aug. 6, 2003), p. A1
- "Downward Departures Debate Continues," Third Branch: Newsletter of the Federal Courts, Vol. 35, No. 8 (Aug. 2003)
- Goldman, Lawrence, "The Feeney Amendment," Champion, National Association of Criminal Defense Lawyers (June 2003)
- Bazelon, Emily, "With No Sentencing Leeway, What's Left to Judge?," Washington Post (May 4, 2003), p. B04