08 December 2003

The New York Times reminded me of other problems with criminal law that matter. The so-called Feeney Amendment has resulted in serious criticism and subversion from the Federal judiciary. It is intimately linked with the evil Federal Sentencing Guidelines.

Under the Feeney Amendment (part of the PROTECT Act, a largely under-the-radar corollary of the PATRIOT Act), federal judges must make a nice neat package of all of the otherwise sealed papers used in the sentencing process and send them to the US Sentencing Commission, which allows unfettered access by Congress. Leaving aside the privacy issues this creates—there is very little in a sentencing report that is not private, and only a slightly smaller proportion that is even relevant to the crime that was prosecuted—this creates a serious problem with Congressional meddling in the Judicial branch. Rep. Feeney (R-FL) is quoted as saying that "The fact is that we have full authority to act over federal judges and the right to access those documents. Judges cannot claim a separation of powers issue here. Under the Constitution, it is Congress that establishes all federal courts other than the Supreme Court in the first place." If Mr. Feeney is a lawyer, he flunked Constitutional Law. There is a long, long line of cases from the Supreme Court telling Congress and the Executive that they may not intervene in the judicial resolution of specific cases; and the text of Article III, § 1 says only that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Congress may therefore eliminate an inferior court; it may establish an inferior court; it may do nothing else.

This goes well beyond the racism inherent in the Sentencing Guidelines and their misapprehension of the fundamental purposes of a sentence. A judge's sentence is supposed to punish/rehabilitate/incapacitate/deter (or some combination thereof) a specific criminal following conviction for a specific offense, not the universe of all persons who might commit the offense. (Of course, that assumes that those making policy can even spell Hart, or LaFave, or any of the other major commentators on criminal law.) Unless, of course, the Queen of Hearts is now running the government. Which, come to think of it, might be an improvement on the status quo; at least Alice was only dreaming, and she woke up before her head was removed.

Why should authors and artists care? Every so often, Congress attempts to reintroduce some variety or other of the Alien and Sedition Acts, or goes off on another McCarthyist witchhunt. Given the hurt feelings from Bill O'Reilly right now, and the acclaim accorded Michael Moore, do you really think that future attempts at "supervision" are that far off? And, if so, what would your presentencing report look like?