The Feeney Amendment and the Continuing Rise of Prosecutorial Power to Plea Bargain

Congress has come close to a drive-by rewrite of sentencing law, and a sentencing revolution may still be in the works. On April 10, 2003, Congress passed the PROTECT bill (popularly known as Amber Alert), which creates a national notification system for child kidnappings. On March 26, while the bill was pending, the House of Representatives passed the Feeney Amendment to the bill. The original amendment was an unprecedented attempt by Congress to rewrite the Sentencing Guidelines by itself without the input or expertise of the Sentencing Commission. The House-Senate conference committee narrowed the amendment, limiting many of its changes to child pornography and child sex cases. The revised amendment nonetheless changes the Sentencing Guidelines substantially, and it instructs the Sentencing Commission to make many more changes within the next six months. The likely result is many fewer Guideline departures, less judicial discretion, and more prosecutorial control. The losers are defendants and judges, and the winners are prosecutors. Prosecutorial leverage to plea bargain will be at an all-time high, resulting in fewer trials, more bargains, and higher sentences. Judges used to check prosecutorial harshness, but now they are increasingly powerless unless prosecutors deign to grant leniency. Part I of this article surveys the scope of the Feeney Amendment, emphasizing the breadth of its changes and how far it reaches beyond child-sex cases. Part II explores how the Feeney Amendment shifts power from district judges to prosecutors. While Congress's desire to reduce sentencing departures is understandable, an evenhanded approach should regulate not only judicial leniency, but also prosecutor-initiated departures. The result is even more imbalance in plea-bargaining power. Part III considers Congress's directives to the Sentencing Commission. Congress has lost trust in the Commission, which led it to rewrite sentencing law on its own without awaiting the Commission's expertise. The result is a blunderbuss solution to the narrower problems caused by a subset of judges. I hope that the Commission will respond by constraining prosecutorial as well as judicial discretion. If however the Commission continues on the present course, it will skew the already lopsided balance of power even more.