Chairman Orrin Hatch
United States Senate
Committee on the Judiciary

Senator Patrick J. Leahy
United States Senate
Committee on the Judiciary

Re:  Amendments to the Federal Sentencing Guidelines pursuant to the PROTECT Act

Dear Chairman Hatch and Senator Leahy:

The undersigned organizations represent diverse constituencies and perspectives, but we are united in our opposition to any additional erosion of federal judicial sentencing discretion.  For this reason, we are deeply alarmed by signs that the Justice Department intends to submit to Congress legislation to further restrict the ability of judges to depart from the sentencing guidelines.  We urge you to reject any such proposals.

On October 27, 2003, in compliance with the PROTECT Act, the United States Sentencing Commission amended the Federal Sentencing Guidelines to substantially reduce the incidence of downward departures.  Among other significant changes, the Commission eliminated nine separate grounds for downward departures.  Judges will no longer be permitted to depart "pursuant to plea agreement" or due to ""general mitigating circumstances" - two factors that accounted for 37.5 percent of all downward departures in 2001.  Furthermore, the Commission created a new early disposition program in the guidelines that will capture departures advocated by the government to address bulging caseloads - another frequently invoked ground for departure.  The amendments, combined with other restrictions already imposed under the PROTECT Act, promise to radically transform federal sentencing.

During discussions that led to the language in the PROTECT Act to limit judicial discretion in federal sentencing, the Department of Justice argued that the increase in departure rates - from 5.8 percent in 1991 to 18.3 percent in 2001 - was due to judicial leniency.  However, the facts tell a different story.  The Sentencing Commission recently released statistics that demonstrate conclusively that increased prosecution of immigration cases and the government's own resort to ""fast track"" departures to quickly dispose of those cases fueled the increase.  Thus, much of the increase in the departure rate in the last decade is due, not to errant judges, but to the government's own plea bargaining practices.  Even more telling are data revealing that nearly 90 percent of federal sentences are either within the range specified by the guidelines or the result of a government-initiated departure.