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Links: Judge Videotapes Sentencing
Posted by Steven Wu on Saturday, January 31 @ 20:00:17 EST Governance
The U.S. Sentencing Guidelines propose set sentences for crimes meeting certain criteria. However, trial judges have long had the power to make downward departures from Guidelines sentences for a variety of reasons, also set out in the Guidelines. Nevertheless, federal prosecutors and the current administration of the Department of Justice have long been concerned that judges have been too liberal about granting downward departures, stretching the departure criteria listed in the Guidelines to illogical extremes. (More good background here.)

In response to this perception, Congress passed the Feeney Amendment (specific provisions described here, negative editorial here, opposition here), which, among other things, severely limits judicial discretion to make downward departures, allows de novo (rather than abuse-of-discretion) appellate review for departures, and requires reporting of any departures to the congressional Judiciary Committees.

This has not been popular among judges, to say the very least. Chief Justice Rehnquist has spoken and written against the Amendment, and other federal judges have either resigned or protested against this constraint on their discretion.

Now, a New York federal judge has decided to videotape his sentencing proceedings, as a way of responding to the de novo review of the courts of appeals. The judge's claim is that the videotapes will allow the court of appeals to make proper de novo rulings, rather than erroneous ones based on the limited record before them and without the benefit of face-to-face time with the defendant, or intimacy with the case.

I think this will solve some of the problems with the Feeney Amendment (assuming appellate judges or their clerks actually watch the videotapes): for instance, it will help explain, in ways that a cold transcript cannot, why the judge made a particular downward departure upon hearing the defendant's statements. This solution leaves untouched, however, the more general problem: that appellate judges will be given free reign to eliminate downward departures that might have been made after a careful reflection on the entire trial, and not just on the sentencing proceeding.

 
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