The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
The sentencing of criminal defendants has traditionally involved
questions of fairness and justice. Judges charged with this duty approach
the task with solemnity, recognizing its centrality to the rule of law
and the credibility of the judiciary. See, e.g., Koon v. United States,
518 U.S. 81 (1996); Kate Stith & Jose Cabranes, Fear of Judging:
Sentencing Guidelines in the Federal Courts (1998). With the advent of
the United States Sentencing Commission and Guidelines in 19881, the
ability of judges to fairly balance the complex web of particularities in
an individual's case when meting out punishment was circumscribed.
28 U.S.C. § 991.
Passage of the Prosecutorial Remedies and Other Tools to end the
Exploitation of Children Today Act of 2003 ("PROTECT Act") carries
further the attenuation of the capacity of federal judges to do their
work properly by requiring the Court of Appeals to review de novo a
District Court's departure from the applicable Sentencing Guidelines
range. Pub.L. No. 108-21 117 Stat. 650 (2003), In effect, primary
sentencing authority is shifted to the appellate judges whenever a trial
court provides a lower sentence than do the Guidelines matrices. 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 in Koon.
To assist me Court of Appeals judges in their new onerous task of more
closely supervising trial judges in minimizing departures from the
Guidelines strictly construed against discretion all sentencing
hearings before the undersigned will be recorded by an appropriate video
recording device. The appellate judges can then observe the actual people
they arc sentencing. The alternative, to have all the parties and their
witnesses appear in the appeals court so that they can be seen and heard
a sine qua non for proper de novo sentencing review would be too
awkward and time consuming.
In almost all criminal cases in federal courts, the defendant now
accepts a plea bargain from the government. See United States v. Speedy
Joyeros, N.A., 204 F. Supp.2d 412, 417 (E.D.N.Y. 2002) ("The virtual
elimination of federal criminal trials, substituting administrative
decisions not to prosecute or pleas of guilty, has substantially changed
our federal criminal law system."), "Increased prosecutorial discretion
and power have raised the percent of guilty pleas from 86% of all federal
convictions in 1971 to 95% in 2001." Id.; see also Adam Liptak, U.S. Suits
Multiply, But Fewer Ever Get to Trial, Study Says, N.Y. Times, Dec, 14,
2003 at Al. The modem judge and his or her law clerks spend far more time
with the Sentencing Guidelines Manual than the Federal Rules of Evidence
or Criminal Procedure. As a consequence, sentencing hearings routinely
conducted following the entering of a guilty plea are the critical events
in criminal prosecutions.
Rule 32 of the Federal Rules of Criminal Procedure requires that the
court receive a presentence report in advance of the sentencing hearing.
The presentence report contains a
recitation of the defendant's "history and characteristics" including
criminal background, family history, medical and psychological history
and other pertinent facts. Fed.R.Crim.P. 32(d). The presentence report
is indispensable, but it remains a record, purposefully written in a
lifeless, "nonargumentative" style. Id.
Those attending a sentencing hearing typically include the defendant
and defendant's counsel, an Assistant United States Attorney, a probation
officer (who prepared the presentence report), a court reporter, the
judge, and the family, friends, employers, and other witnesses for the
defendant and for the government. If the defendant is in custody, he or
she is brought to court clad in prison garb, under the watchful eye of
the United Stales Marshals. Otherwise, the defendant arrives in civilian
attire. The closest family members arc invited to sit with the defendant
so that the court may observe them and interrogate them if necessary, and
so that they and the defendant can furnish each other with emotional
support. Given that the majority of defendants are charged with drug
crimes, there is rarely a tangible "victim" in the court pursuant to
In accordance with Rule 32, defense counsel, the defendant, the
prosecutor and the victim (if present) are given opportunities to speak.
Id. at 32(i). If a motion for departure is being heard, the defense
presents its case with testimony from at least the defendant. The
government is then afforded the opportunity to present its position.
Grounds for departure arc often based on a mix of circumstances or
characteristics, some of which are readily observable by the court:
familial circumstances, see U.S.S.G. § 5H1.6, disabilities, see U.S.S.G.
§ 5H1.4, and physical stature indicating the enhanced possibility of
sexual abuse in prison, see id,; see also § 5K2.10, among others. The
court then imposes a sentence "without unnecessary delay." Id. at 32(b).
In a substantial number of cases an adjournment is necessary so that
supporting documents and photographs of family and living conditions can
be obtained from abroad. At times adjournments of a year or more are
needed so that the defendant can demonstrate rehabilitation. See United
States v. K, 160 F. Supp.2d 421, 426 (E.D.N.Y. 2001) ("Adjournment of
sentence is permitted to allow the court to determine defendant's
postoffense, presentence rehabilitation and to explore and consider a full
range of appropriate sentencing alternatives,").
III. PROTECT Act and Its Consequences
The PROTECT Act's main features include implementing a national Amber
Alert communication system, providing judges with the discretion to
increase the term for supervision of released sex offenders up to a
maximum of life, and extending the statute of limitations ...