The federal courts do not suffer from a crisis of leniency. Still, a measure proposed by Rep. Tom Feeney and passed by Congress undermines judicial discretion and imperils reasonable sentencing.

Leave it to a Republican-led Congress to take what was a sensible federal expansion of the "Amber Alert" child kidnapping notification system and turn it into a measure to strip federal judges of discretion in their courtrooms.

In an act of craven opportunism, Republican leaders in the House and Senate, knowing just how politically difficult it would be for Democrats to vote against the popular bill, used it as a vehicle to undermine our nation's independent judiciary. The bill passed Congress, and President Bush has promised to sign it.

Behind this underhanded effort is U.S. Rep. Tom Feeney, R-Oviedo, who sought to amend the bill -- written with the assistance of the Justice Department -- to combat what he saw as increasing instances of leniency in federal sentencing. (When he was speaker of the Florida House of Representatives, Feeney did everything he could to undermine the independence of the state judiciary.)

As originally written, Feeney's measure would have sharply limited the discretion of judges to go below the ranges established in federal sentencing guidelines for all crimes. In conference committee, the limits were modified to apply only to sex crimes against children. But other parts of Feeney's amendment remain and will be triggered whenever a federal trial judge departs downward from the guidelines, regardless of the crime.

For example, under the bill the Justice Department would report to Congress every time a judge exercises leniency and hands down sentences below what the guidelines call for. In addition, federal appeals court judges could no longer give significant deference to a trial judge's sentencing decisions when the punishment is below the guidelines. The excessive scrutiny is only to occur with reduced sentences, not when a judge sentences more harshly.

Critics of Feeney's proposal include the federal judiciary and the established bar. Chief Justice William Rehnquist, as head of the Judicial Conference, wrote on the original bill that it "would do serious harm to the basic structure of the sentencing guideline system and would seriously impair the ability of courts to impose just and responsible sentences." Similar sentiments were expressed to Congress by the president of the American Bar Association.

Despite Feeney's imaginings, there is no crisis of leniency in the federal courts. According to the U.S. Sentencing Commission, an overwhelming percentage of reduced sentences -- 79 percent in fiscal 2001 -- are a direct result of a request from the prosecution, most in return for a defendant's cooperation. Relatively few reduced sentences are ever appealed.

The real problem in federal sentencing is the continued existence of mandatory minimums for nonviolent drug offenders, many of whom end up spending long years in prison because a judge is hamstrung from making rational adjustments to their sentences. If Congress wants to revamp federal sentencing in a positive way, it should repeal irresponsible strictures on judicial discretion, not add more.

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