The PROTECT Act's Sentencing Provisions, And the Attorney General's Controversial Memo:
An Assault Against the Federal Courts

By MARK H. ALLENBAUGH
Wednesday, Aug. 13, 2003

This spring, the PROTECT Act was signed into law. While it is famous for containing the federal version of the "Amber alert," it also included another important provision relating to federal criminal sentencing.

That provision directs the U.S. Sentencing Commission to amend the U.S. Sentencing Guidelines "to ensure that the incidence of downward departures are substantially reduced." (The Sentencing Guidelines apply to all criminal sentences meted out in federal court, and dramatically constrain judges' sentencing discretion. Judges can choose a "downward departure" - imposing a sentence below the range that Guidelines prescribe - only in limited circumstances.)

On July 28, Attorney General John Ashcroft issued a memorandum to all federal prosecutors outlining the Department of Justice's policies with respect to downward departures, in light of the PROTECT Act. It states that prosecutors should not "acquiesce" to departures except in rare occurrences. In addition, when a judge imposes a departure over the prosecutor's objections, the memo requires the prosecutor, within 14 days, to report the departure to DOJ. In short, DOJ's departure policy is no policy at all.

The result, Senator Edward Kennedy has argued, will be to establish a "blacklist" of federal judges who downwardly depart.

The PROTECT Act and the Ashcroft memorandum indicate a distrust of the judiciary, and a belief that more offenders should be imprisoned for longer periods of time. These beliefs, however, could not be more wrong.

In its state and federal prisons, combined, America incarcerates approximately 1 out of every 143 of its residents (over 2.1 million people). In comparison, England, Italy, France and Germany are only about 1 out of every 1,000. The federal inmate population now exceeds that of any single state. And this is largely due to Congress's Draconian mandatory minimum sentencing laws.

Meanwhile, though you would never know it from the PROTECT Act, downward departures do not mean that federal judges are disobeying the law because they are "soft on crime." The truth is quite to the contrary.

How Downward Departures Work, and What They Mean

The U.S. Supreme Court itself has approved downward departures, in Koon v. United States. They exist because the Sentencing Commission lacks the perfect foresight to address every single individual case when drafting the Guidelines. Accordingly, the Guidelines are meant to cover a "heartland" of typical cases.

In a case outside that "heartland," in which the judge believes that certain unusual mitigating factors exist, a downward departure is allowed. That is entirely consistent with the philosophy of the Guidelines - which is to impose punishment that is deserved, and not arbitrary.

Take, for example, the recent case of United States v. VanLeer out of the U.S. District of Utah. VanLeer had entrusted his shotgun with a friend before he headed off to prison to serve time for a drug offense. When he left prison, having served his time, he picked up the gun - and, technically, committed a federal crime by becoming a "felon in possession of a firearm." But he did so only because, needing rent money, he wanted to pawn the gun at a local pawn shop - which he then did.

The Guidelines called for a sentencing range of 30 - 37 months. But Judge Paul Cassell thought - reasonably - that the range was unjust under the circumstances, and downwardly departed to a sentence of "only" 18 months imprisonment.

The judge reasoned that the federal "felon in possession of a firearm" law was intended to prevent "violent crimes and consequent personal injury and even death." That was its heartland. But VanLeer fell outside that heartland; his pick-up-and-pawn transaction did not threaten violence. Accordingly, the judge reasoned, consistent with the purpose of departures, VanLeer should not be sentenced as severely as a felon who possessed a firearm with the intent to inflict serious injury or death should.

Judge Cassell certainly was not being "soft"; he was being just. And isn't that what judges are supposed to do?

Why the Federal Judiciary Is Angry About the PROTECT Act

Since the inception of the PROTECT Act, the federal judiciary has voiced grave concern - and even outrage - at its requirements.

On May 5, during his address to the Federal Judges Association Board of Directors, the Chief Justice William Rehnquist took issue with parts of the Act. He conceded that collecting information on downward departures could assist Congress in deciding whether further legislation is needed. But he also warned that "[t]here can also 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 individual judges in the performance of their judicial duties." (Emphasis added).

On June 26, U.S. District Court Judge John S. Martin published an Op Ed in The New York Times, announcing that he was resigning from the bench due to the PROTECT Act. He argued that, "[f]or a judge to be deprived of the ability to consider all of the factors that go into formulating a just sentence is completely at odds with the sentencing philosophy that has been a hallmark of the American system of justice," and concluded, "I no longer want to be part of our unjust criminal justice system."

On July 18, Judge Myron H. Bright of the U.S Court of Appeals for the Eight Circuit, in his concurring opinion in United States v. Flores, urged, "I want to conclude by making a plea to the district judges of this country who feel that they should have some say and some discretion in sentencing. Let your opinions disclose your views about the injustice in the sentencing decision or decisions you are obligated to impose by Congressional mandate and/or the Sentencing Guidelines.... [And l]et me say further that judges generally do not object to appropriate guidelines for sentencing decisions but the time has come for major reform in the system. I say in this concurring opinion, as I have said in other sentencing opinions that I have written, 'Is anyone out there listening?'"

The Chief Justice and Judges Martin and Bright are far from alone in their views. Last week, Chief Judge Marilyn Hall Patel of the Northern District of California attacked the PROTECT Act and Ashcroft memo in a published opinion. She complained that, under the new regime, "the wisdom of the years and breadth of experience accumulated by judges and the Sentencing Commission in adjudicating criminal cases and sentencing defendants is chucked for the inexperience of young prosecutors and the equally young think-tank policy makers in the legislative and executive branches."

Quoting Judge Guido Calabresi of the U.S Court of Appeals for the Second Circuit, Judge Patel also wrote that "'an independent judiciary which applies rules of law ... is a pain in the neck to any government that wants to get things done.' The judicial branch should not be timid nor fearful of inflicting an occasional whiplash or, where necessary, even imposing chronic pain when Constitutional rights are threatened or the balance of powers is jeopardized."

Meanwhile, just this past weekend, Supreme Court Justice Anthony Kennedy, in an address to the American Bar Association, stated that "[o]ur resources are misspent, our punishments too severe, our sentences too long." He advised that "[t]he federal sentencing guidelines [themselves] should be revised downward."

Next week, the U.S. Sentencing Commission will convene public hearings to receive input regarding how it should amend the Guidelines to substantially reduce departures, pursuant to the dictates of the PROTECT Act. Hopefully, with Congress's cooperation, they will take Justice Kennedy's wise suggestion that lowering the ranges downward, will itself reduce downward departures, by minimizing the instances in which judges are forced by the Guidelines to impose a long sentence that is unjust under the circumstances of the individual case.

An Impending Additional Threat to Judicial Discretion: The VICTORY Act

Now circulating in Congress, but not yet introduced, is the Vital Interdiction of Criminal Terrorist Organizations Act of 2003, or the VICTORY Act. (Ironically, or appropriately, the 'Y' is missing.)

The Act does have one redeeming feature: It would reduce the much derided 100-1 sentencing ratio between crack and powder cocaine to 20-1. That, at least, is a step in the right direction. But this small softening is accompanied by a large crackdown: With respect to the sentencing of drug offenders, the Act would reduce the impact of certain mitigating factors, and increase the impact of certain aggravating factors - predictably leading to longer sentences.

Otherwise, the VICTORY Act continues the assault on the federal judiciary that the PROTECT Act and the Ashcroft memo embody. It would further reduce the discretion of federal judges when sentencing drug offenders. It would also make it more difficult for federal judges to invoke the "safety valve" - a legal mechanism whereby judges can sometimes sentence a first-time drug offender below the mandatory minimum sentence. (Technically, the "safety valve" is not a downward departure mechanism, though it has the same effect.)

The Problem with the PROTECT and VICTORY Acts

The PROTECT and VICTORY Acts do not do justice. Instead, they rob the federal judiciary of their discretion to impose just sentences. (And meanwhile, they mandate ever more malicious sentences for drug offenders that will only lead to more Americans languishing in prison.)

This assault on judicial independence must end. Judges, who rarely speak out on matters that involve Congress or the Executive, have spoken out strongly in this instance. If we fail to listen, we do so at our peril.


Mark Allenbaugh is an Associate at Montedonico, Belcuore & Tazzara, P.C. in Washington, D.C., and is an Adjunct Professor in the Philosophy Department at the George Washington University. Prior to entering private practice, he served as a Staff Attorney for the United States Sentencing Commission. He has published numerous articles on sentencing and criminal justice, and is a co-editor of Sentencing, Sanctions, and Corrections: State and Federal Law, Policy, and Practice (2d ed., Foundation Press, 2002). The views expressed herein are his own. He can be reached at Mark.Allenbaugh@mbt-legal.com

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