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What Feeney Got Right: Why Courts of Appeals Should Review Sentencing Departures De Novo |
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Andrew D. Goldstein [View as PDF]
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113 Yale L.J. 1955 (2004)
Last summer, when a panel of the U.S. Court of Appeals for the First Circuit issued its initial ruling in United States v. Thurston, it plunged into a war between federal judges and Congress, as well as between district and appellate courts, over how much flexibility trial judges have to tailor criminal sentences as they see fit. The war began nearly two decades ago with the passage of the Sentencing Reform Act (SRA) of 1984 and the subsequent enactment in 1987 of the comprehensive Sentencing Guidelines regime. It flared up anew in April 2003, with the passage of the Prosecutorial Remedies and Other Tools To End the Exploitation of Children Today (PROTECT) Act of 2003, Congress's latest attempt to rein in the discretion of sentencing judges.
Before the PROTECT Act, a district court's decision to choose a sentence that departed from the range recommended by the Sentencing Guidelines was to be given considerable deference by courts of appeals. In accordance with the Supreme Court's 1996 decision in Koon v. United States, appellate courts had been directed to review Guideline departures for "abuse of discretion." But the PROTECT Act's "Feeney Amendment," named after its author, Florida Representative Tom Feeney, changed the standard of review to "de novo," and seemingly invited appellate courts to regularly second-guess the sentences imposed by district judges. The Amendment, which was approved after just fifteen minutes of debate on the floor of the House of Representatives, quickly earned the condemnation of nearly the entire legal community. Until Thurston, however, courts of appeals around the country had danced around the new standard of review, asserting in case after case that their decisions would be the same using either de novo or abuse-of-discretion review. The First Circuit, which in the past had often led other courts of appeals when it came to sentencing decisions, tackled the new law head-on in Thurston.
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