On the morning of March 27, Tom Feeney rose from his seat in the House of Representatives and with six words began a legal insurrection heard across America.
The words were harmless enough: "Mr. Chairman, I offer an amendment." It was what was inside the amendment that caused federal judges and legal scholars to lash out at Feeney, a 45-year-old Oviedo Republican, and other like-minded members of congress.
The Feeney Amendment, as it is now called, restricts the authority of federal judges who are more lenient than permitted under federal sentencing guidelines. "He wants judges to be robots," says attorney Steve Mason, who lives in Feeney's district, which includes parts of Seminole, Orange, Brevard and Volusia counties. "He's taken away all discretion. He's cut the knees out of the entire federal judiciary."
Though it might seem harmless to the layperson, the restriction has set off a national debate over everything from judicial independence to bureaucratic micromanagement to the swelling federal prison population. Federal judges, somewhat uncharacteristically, have gone on record against the amendment -- one, John S. Martin Jr. of New York, resigned in protest. Even U.S. Supreme Court Chief Justice William Rehnquist, a bona fide conservative appointed by Richard Nixon, has said the amendment might do "serious harm" to the federal sentencing structure in place since 1987. Editorial writers for the Washington Post, under the headline "House Without Mercy," called the amendment "ill-advised," while The New York Times editorialists asked the Bush administration to heed "the word of the growing number of conservatives" against acts like the Feeney Amendment.
"Certain hard-line Washington centralizers want these tough federal sentences enforced," says Frank Bowman, an Indiana University School of Law professor who has written several op-ed pieces against the Feeney Amendment. "They're saying, 'Dammit, we meant what we said when we said we wanted everyone to go to prison.' But the people in Washington are removed from the realities of the day-to-day activities in the courtroom. They need to listen to the people on the ground."
Feeney, for his part, says he was caught off guard by the backlash to his legislation. "I guess I was surprised," he says. "Especially by the criticism from judges and defense attorneys."
What alarmed jurists as much as the sentencing restrictions was the additional requirement under the Feeney Amendment for judges to report why they deviate from sentencing guidelines. The concern is that judges will be denied promotions to appellate courts based on their sentencing decisions. "There is fear on the part of judges who might be blacklisted," says Rollins College political science professor Richard Foglesong. "Therefore they would not be recommended by the Justice Department for appointments or approved by a Republican Congress."
Throughout most of American history, judges and parole boards have overseen the amount of time inmates spent in prison; judges on the front end, parole boards on the back. In 1984, Congress formed the U.S. Sentencing Commission, whose ostensible purpose was to make prison sentences uniform throughout America. Critics of the judicial system at the time, mostly social conservatives, said they were tired of hearing about a judge on the East Coast giving a lighter sentence than judges on the West Coast, or vice versa.
But there was also a strong lock-'em-up mentality, fueled by an overreaction to the crack cocaine trade of the 1980s, which caused Congress to end the federal parole system and pass harsh mandatory minimum sentences. The federal prison population has mushroomed accordingly -- from 44 prisons, 24,000 prisoners and a Bureau of Prisons budget of $330 million in 1980, to 104 prisons, 177,000 prisoners, and a $4.6 billion budget today. (Fifty-five percent of federal prisoners are incarcerated on drug-related offenses; a third are non-U.S. citizens.)
In an attempt to make sentences uniform, the Sentencing Commission devised a two-dimensional, mathematical guide sheet that provided judges with a sentencing formula. One of the dimensions accounted for the inmate's criminal history, the other for the severity of the crime. The more drugs a defendant is caught with, for example, the more prison time he is given.
Judges, however, were allowed to depart from the guidelines for certain reasons. A defendant could receive years off a sentence if he had a gambling addiction, if he was a veteran, if he was the sole provider to the household income, if he was being deported after completion of his sentence, if he had a diminished mental capacity or if he assisted prosecutors with evidence.
The new system still produced broad inequities. Kemba Smith of Richmond, Va., and Dorothy Gaines of Mobile, Ala., were among federal prisoners pardoned by Bill Clinton before he left office in 2000. Both had been relatively low-level drug couriers and were given 20-year sentences (in unrelated cases) even though upper-level dealers -- caught in the same drug conspiracies, but willing to testify against Gaines and Smith -- were sentenced to as little as five years. Smith and Gaines were also punished with harsh sentences because they traded in crack cocaine instead of the powder form. Federal sentences are 100 times worse for crack offenders, even when quantities sold are the same amount. (Crack cocaine is the only drug that carries a federal mandatory minimum for simple possession. Possession of five grams or more -- the equivalent of five packets of coffee sweetener -- is an automatic five-year sentence.)
"It is common for prosecutors to cut a deal with high-level offenders, whereby they get a small sentence for turning in others," says Bill Piper, associate director of national affairs for the Drug Policy Alliance, which advocates for sentencing reform. "The people at the bottom with no information to trade, like poor people of color, get long sentences for small offenses, while people at the top, like rich white drug dealers, get lower sentences."
The discrepancies between the sentencing of Gaines and Smith and that of their higher-placed cohorts were not what Feeney hoped to rectify when he introduced his amendment in the House chambers last March. He wanted to curtail the number of times judges deviated from the sentencing guidelines. In proposing his amendment, Feeney testified that judges had departed, in cases other than immigration, about 10 percent of the time in 1996 compared with 14.7 percent in 2001. "Increasingly, the exceptions are overriding the rule," he said.
Feeney's critics have suggested that he is a pawn of the Department of Justice because Justice officials have spouted similar numbers and want to eliminate judicial sentencing discretion. The old adage is that freshmen congressional members are seen, not heard; and Feeney's occupation (he's a real estate attorney) doesn't lend itself to major legislation involving the nation's judiciary. "It's perfectly clear Mr. Feeney is not an expert on criminal law -- federal or state," says Bowman.
Feeney, who sits on the House Judiciary Committee, says staff members from the House leadership, the Department of Justice and White House consulted with his staff before he was asked to author the amendment. "I wasn't tapped on the shoulder by the speaker in secret," says Feeney. "The leadership here knew I wasn't going to buckle under pressure. I didn't give it a second thought. I supported the policy. I just wanted to make sure I understood all the ramifications."
In another sense, Feeney was an atypical choice to argue for the amendment. In business matters he's a classic laissez-faire Republican, the kind of politician who goes to Washington to keep meddlesome pols out of the nation's pocketbooks. "The regulatory burden had become overwhelmingly fueled by the insatiable appetite of government bureaucrats to centrally plan and micromanage everything from speed limits on highways to the size of toilet bowls," Feeney said two years ago in a speech to a Republican group educating candidates how to run for office. "The Empire State Building, built in 1913, took all of 11 months, from engineering decision to opening day. Today, it may take 11 months in some jurisdictions to acquire an arbor permit to prune a sick tree."
Yet Feeney says congressional intervention in courtroom decisions is not micromanaging because his amendment doesn't tell state and local governments how to behave. It merely instructs federal employees -- judges -- how to enforce congressional directives. "We're not telling states how to run their judicial institutions," he says.
In fact, Feeney has a combative history with the judicial branch of government dating to his days in the Florida statehouse, where he served throughout the 1990s, culminating in a tour as speaker of the house in 2001. Feeney was part of a movement by Republican legislators to change the makeup of the state's judicial nominating board -- which supposedly produced too many "liberal" justices -- so the Florida Bar had less input and the governor more. Feeney himself has advocated for judicial term limits and for the election of appellant judges. The culmination of the attacks was the 2000 election, when the Florida Supreme Court ruled the presidential recount could continue in some counties. "The Republicans were disparaging them as Democratic nominees," Foglesong says.
Washington observers say Feeney has joined veteran congressmen, as well as members of the Justice Department and White House, to limit the powers of the federal judiciary. "The Feeney Amendment appears to be part of a more general strategy on the part of the administration to limit judges' ability to determine an appropriate punishment," says Margaret Love, chair of the Sentencing Committee of the American Bar Association's Criminal Justice Section.
Lock up everyone
The amendment proposed by Feeney last March would have curtailed departures on all federal crimes. Eventually it was watered down in a joint Senate-House committee and included in the Amber Alert legislation passed April 10, which cracked down on sexual crimes against children and provided for a national missing-child alert system. The resulting Feeney Amendment pertained only to crimes like child pornography, child solicitation and kidnapping.
But the amendment continues to have lasting repercussions. It directed the Sentencing Commission to re-evaluate deviations from the guidelines and close some loopholes.
The commission issued a corresponding report in October, which requires judges to begin listing detailed reasons why they depart from the guidelines. The report also restricted departures based on gambling addiction, coercion, aberrant behavior, diminished capacity or for armed career criminals.
Meanwhile, Mark Souder, the Indiana Republican who wrote the law forbidding college students convicted of drug offenses from receiving financial aid, has given his fellow congressmen notice that he wants to extend the Feeney Amendment to drug-related crimes.
In effect, the same lock-'em-up attitude that occurred with mandatory minimums throughout the 1980s is now taking effect with guideline departures. "We assume the penalty politicians come up with is proportional to the severity of the crime," says Robert Scott, a Virginia congressman. Scott was the first representative to argue against the Feeney Amendment. His district includes the neighborhood where Kemba Smith grew up. "It often isn't. Politicians say, 'Let's give them life' for crimes that are not that serious. It becomes a bidding war to see who can be toughest on crime."
Scott says the House recently passed a bill making the penalty for brandishing a weapon during the sale of crack cocaine more severe than actually shooting a person while buying drugs. "That's why we have a Sentencing Commission. Let's do this without the TV lights shining on everything."
Feeney is already claiming a victory for his amendment in the strange case involving John Mallon. Mallon was a 61-year-old retired grandfather scheduled to visit the White House March 11, 2002, with members of the Ulster-Scots Agency.
Months before his trip to Washington, Mallon had contacted a 14-year-old Chicago girl named Marny over the Internet. Though he had skin cancer and had undergone quadruple-bypass surgery, Mallon arranged a hotel-room liaison with Marny, boasting, among other things, that he'd had sex with a 16-year-old Florida girl. What Mallon didn't know was that Marny was in fact an FBI agent. When he arrived in the Chicago area, Mallon was arrested, convicted and sentenced to 21 months in a federal penitentiary -- not the 41 months called for by the guidelines. (The sentencing judge said Mallon's heart medication affected his mental abilities.)
On appeal, the three-judge appellate panel, citing the Feeney Amendment, demanded that the district judge resentence Mallon within the guideline ranges. Instead of being released in September, he is still in prison in White Deer, Penn.
It's difficult to argue that pedophiles like Mallon deserve much mercy. But according to Feeney's estimates, less than 5 percent of all federal cases involve crimes against children. (Another Congressman put it at less than 1 percent.) Most are like Kemba Smith and Dorothy Gaines.
The argument that these kinds of prisoners need more jail time has eroded away in state governments. According to Vincent Schiraldi, executive director of the Justice Policy Institute, 25 states have abolished mandatory-minimum sentences, accelerated parole, increased time off for good behavior or begun diverting prisoners into treatment facilities.
"Sentencing is rigid enough," says John L. Carroll, a former federal judge who is now dean of the Cumberland School of Law at Alabama's Samford University. "Congress continues to make punishments worse and worse. Anyone can tell you these long prison sentences don't work. They are appropriate only for violent crimes."
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