News Tip: Amendment Could Result in Unwanted Sentencing Changes
Duke law professor Sara Sun Beale says there is no proof that a House amendment would help with the sentencing of pornography defendants
Monday, April 7, 2003
An amendment to the House version of a bill to ban "virtual" child pornography would transform the current federal system of sentencing guidelines into a system of mandatory sentences, says a Duke University law professor. "The result," says Sara Sun Beale, "would be increased incarceration at the expense of taxpayers, without any proven benefit."
The current system, in place for 15 years, "strikes a careful balance between sentencing uniformity and individualized justice," says Beale, whose principal academic interests include the federal government's role in the criminal justice system. The current system permits occasional "departures" from the ordinary guidelines, but limits departures to cases in which there are aggravating and mitigating circumstances of a kind or degree that were not considered by the U.S. Sentencing Commission. "This makes sense, because no guidelines can possibly anticipate every possible factor that should be considered," says Beale, who is co-author, with Norman Abrams, of "Federal Criminal Law and Its Enforcement" (2d ed. 1993 & 3d ed. 2000).
"There has been no showing that judges have abused this authority or been unduly lenient. Currently 79 percent of the downward departures are requested by federal prosecutors, and the government can appeal any case in which it considers a downward departure inappropriate."
The amendment passed by the House last week -- the Feeney Amendment to the "Child Abduction Prevention Act" -- would prohibit judges from taking into account such factors as the defendant's military service, his exceptional family responsibilities or the fact that this was aberrant behavior. Except for a few factors now defined in the guidelines, the amendment would prohibit sentence reductions and would change the standard for the appellate review of departure decisions.
"It's important for Congress to take a close look at such a major change in federal sentencing, to make sure it's not wasting the taxpayers' money or unduly tying the hands of the courts," Beale says. "This change was slipped in as a last-minute amendment to a bill on an entirely different subject, with no opportunity to solicit the opinion of the courts, the Sentencing Commission or the American Bar Association (ABA).
"The ABA is right in calling for a timeout to allow full consideration before making such a radical change in federal sentencing. Indeed, the Sentencing Commission already has under way a study that would bear directly on this issue. There's no excuse for such a rush to judgment on such an important issue."
Beale can be reached for additional comment at (919) 613-7091 or by e-mail at sun@law.duke.edu.
