Protect Us From the PROTECT Act

By Kari Lydersen, AlterNet. Posted October 13, 2003.

In April of this year, the PROTECT Act was passed by both houses of Congress and signed into law in only 30 days. It was officially meant to protect children, as the acronym – Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today -- indicates. Its most high profile component is the Amber Alert provision, which puts in place a rapid response system to help find and rescue kidnapped children. But in keeping with the double-speak that has typified this administration, at least one part of the PROTECT Act would cause substantial harm to children and young people. The Feeney Amendment limits judges’ discretion in criminal sentencing and encourages them not to make downward departures (more lenient sentences) from federal sentencing guidelines.

Not only does the act severely limit the ability of judges to depart from the federal sentencing guidelines, but it also requires that when they do, their actions are reported to Congress and Attorney General John Ashcroft, a big proponent of the legislation.

This means, essentially, that far fewer judges would be giving lighter sentences based on their own judgment about an individual case. A bulk of the people affected by this move would be children and young adults: young adults caught on non-violent drug or other charges, who would be far better served by compassion and a wake-up call than harsh punishment; and the children of women locked up for nonviolent drug-related crimes. This latter group is no small population – statistics show that the vast majority of incarcerated women were convicted of nonviolent drug-related offenses, and the majority of them have children.

But on Sept. 23, 2003 opponents of strict, determinate sentencing won a victory. A 27-judge panel headed by Chief Justice William H. Rehnquist unanimously voted to support the repeal of various provisions of PROTECT. Unfortunately, the vote has no binding power, although it is seen as a strong statement that is bound to influence legislation to come.

"This is definitely symbolic, it is something the legal profession will pay a lot of attention to," said Jesselyn McCurdy, legislative counsel for the American Civil Liberties Union (ACLU) in Washington D.C. "Judges have a lot of influence in the [legislative] process, and it is significant that this is an issue they are rallying around because they have nothing personal really to gain from it, it’s just something they’ve recognized as a matter of fairness."

The Judicial Conference voted to repeal the requirements that information on specific judges who give lighter sentences be reported to Congress and the Attorney General; that documents relating to cases be turned over to the House and Senate Judiciary Committees; that the Sentencing Commission institute guidelines to limit downward departures; and other measures.

"This is a very good development," said Mary Price, general counsel for the advocacy group Families Against Mandatory Minimums (FAMM), which opposes rigid determinate sentencing. "We want to ensure there is sufficient judicial discretion so judges can fit punishment to the offender."

This spring Sen. Edward Kennedy (D-Mass.), Sen. Patrick Leahy (D-Vermont) and Rep. John Conyers (D-Mich) introduced Senate and House bills of their own, called the JUDGES Act (Judicial Use of Discretion to Guarantee Equity in Sentencing), which would repeal the parts of PROTECT not specifically related to the exploitation of children. The act is pending in the Senate (S 1086) and House (HR2213).

Federal sentencing guidelines use a matrix where the offense is matched with the defendant’s criminal background to come up with a range of possible sentences. While sentences within this range are recommended, judges are specifically given the freedom to depart from these guidelines as they see necessary – this is the all-important component now under attack by PROTECT.

The debate over mandatory minimums and specifically the PROTECT Act can be seen as a central part of the debate over having a punitive versus a rehabilitative approach to criminal justice. As with the PATRIOT Act and other war on terrorism-related legislation, tough-on-crime legislation like PROTECT has long been driven by politicians playing on the public’s fears to gain support.

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