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Protect Act amendment 'intimidates' judges, critics say.

Article Excerpt
A federal judge for the Eastern District of New York has ordered that all sentencing hearings before him be videotaped--an unusual order in direct response to a controversial amendment to the PROTECT (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today) Act of 2003. The amendment requires de novo review by an appellate court whenever a district court departs from the Federal Sentencing Guidelines. (In re Sentencing, 219 F.R.D. 262 (E.D.N.Y 2004).)

"In effect, primary sentencing authority is shifted to the appellate judges whenever a trial court provides a lower sentence than do the guidelines matrices," wrote Senior District Judge Jack Weinstein. "For a judge to exercise what amounts to original power to sentence without actually seeing the person being sentenced is contrary to American tradition," as recognized by the Supreme Court decision in Koon v. United States.

Critics claim that the de novo review requirement overturns Koon, a ruling that arose from the infamous arrest of Rodney King in Los Angeles. In Koon, the Court held that an appellate court should not review a judge's decision to depart from the range set by the sentencing guidelines, but instead should ask whether the judge abused his or her discretion. (116 S. Ct. 2035 (1996).)

Videotaping the court's sentencing hearings will enable appellate judges to see and hear the people they are sentencing, "a sine qua non for proper de novo sentencing review," Weinstein wrote.

President Bush signed the PROTECT Act into law on April 30, 2003. The new legislation immediately elicited strong responses from members of the federal judiciary, who felt that their authority was being undermined.

The judiciary's sense of being written out of the Constitution is the result of an amendment to the PROTECT Act's politically...

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