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The AMBER Alert bill, including the Feeney/Hatch/Sensenbrenner Conference Amendment passed in the Senate late this afternoon on a vote of 98-0. The House had earlier passed the bill on a vote of 400-25 with 2 voting present and 8 not voting. Following is a summary of the more significant sentencing provisions of the bill. The bill also increases penalties for several federal offenses.
- The bill will become law as soon as the President signs it, likely quite soon.
- Most provisions of the bill will take effect "upon the date of enactment." Sec. 401(j)(1).
- As background, on March 26, the House of Representatives overwhelmingly passed an amendment introduced by Representative Feeney ("the Feeney Amendment") that would have drastically limited downward departures across the board. The Feeney amendment was attached to the AMBER Alert bill, which included provisions raising penalties for child abduction and abuse. The Senate had already passed a companion bill, the PROTECT ACT, ("Prosecuting Remedies and Tools Against the Exploitation of Children Today Act of 2003"), which did not include the Feeney provisions. Because of the different versions of the bills, there was a conference between Senators and Congressmen to resolve the differences. The compromise that passed both Houses of Congress yesterday places fewer restrictions on district court's authority to depart than the original Feeney amendment but still has made substantial changes that will tend to enhance sentences and limit discretion.
- The text of the Feeney amendment that was passed is available on NACDL's departures page:www.nacdl.org/departures.
- Significant provisions:
1. Amends 18 USC § 3553(b) and USSG 5K2.0 to restrict departures for enumerated child-related and sex offenses, including for the child-related cases no departures based on aberrant behavior, family circumstances, diminished capacity, and gambling dependece. These restrictions do not apply to other cases.
2. Directs the US Sentencing Commission, "not later than 180-days" after the Act's enactment to review existing downward departure grounds and promulgate: (A) "appropriate amendments . . . to ensure that the incidence of downward departures are substantially reduced;" (B) an "early disposition" downward departure of "not more than 4 levels" with a government motion requirement; and (C) other conforming amendments and other changes, including a revision of Chapter 1, Part A, ¶ 4(b) (departures) and § 5K2.0
3. Amends the standard of review in 18 USC § 3742 for sentencing appeals, establishing a complicated, multi-standard of review including de novo review of downward departures under certain circumstances.
4. On remand, prohibits downward departures based on new grounds in all cases and places other restrictions on resentencing.
5. Directly amends USSG §4B1.5, the enhancement for repeat offenders of sex crimes and the §2G2.2 guidelines and commentary and prohibits the Commission from ever promulgating amendments that "would result in sentencing ranges that are lower."
6. Requires a government motion before the court may award the additional 1-level downward adjustment based on timely acceptance of responsibility and prohibits the Commission from ever altering this amendment.
7. Prohibits the Commission, for a period of two years, from adding new departure grounds or passing amendments that are inconsistent with the departure restrictions in this statute.
8. Limits the number of judges on the Sentencing Commission to "no more than three".
- Available at www.nacdl.org/departures are "unofficial" reader-friendly versions of revisions to: 18 USC §§ 3553 and 3742; 28 USC § 994; and USSG § 5H, 5K, and 3E1.1.
- The floor debate should be available in the next few days. Senator Kennedy's floor statement contains some helpful language for the defense and is available on NACDL's departures page.
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National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 •
assist@nacdl.org
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