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In the name of the children



On April 30, President George Bush signed the PROTECT Act into law after the legislation made it through Congress with unanimous support. While the main focus of the law, commonly known as the Amber Alert bill, deals with rescuing kidnapped children through a quick response and cracking down on child pornography, the PROTECT Act also included a last-minute rider that radically restructures the way the country’s judicial system will work.

The rider to the PROTECT Act provides a directive to the U.S. Sentencing Commission, the board that oversees sentences handed out by federal judges, to reduce the number of downward departures in U.S. federal courts in its standard review. A “downward departure” is an instance where a judge delivers a sentence that is less than the minimum recommended under the Sentencing Guidelines of 1984.

“If someone comes in and says ‘I should get a break in my sentence. You, judge, should depart because…of my extraordinary community service,’ there isn’t anything that says the court can’t do that. On the other hand, the standard review has changed,” says U.S. Attorney for the District of Montana Bill Mercer.

Part of that change, Mercer says, lies in the commission’s disfavoring of sentencing factors such as age or community service.

“We really shouldn’t care how old a defendant is, and why, because somebody has done a lot of community service, do we want to give them a ‘get out of jail free’ card?” Mercer asks.

But Chief Judge of the United States District Court for the District of Montana Donald Molloy argues that the new legislation does not provide judges enough flexibility to deal with the circumstances of individual cases.

“Do we want a one-size fits all justice system or individual justice that takes into account a defendant’s individual person?” Molloy asks.

In Molloy’s opinion, there should be a sentencing difference between a man who robs a store to feed his family and a skinhead who robs a store to fund his Nazi group. While these two hypothetical characters may have committed the same crime, says Molloy, “There may be a difference in the robber,” and it is that distinction that Molloy fears will be lost as the Sentencing Commission seeks to reduce the number of judicial departures.

A number of senators, including Montana Sen. Max Baucus, expressed concern with the sentencing rider.

“These provisions will drastically impact the discretion and independence of federal judges and the judiciary to impose just sentences…for all crimes,” said Baucus on the Senate floor, adding that the rider to the legislation had “nothing to do with protecting children.”

Despite Baucus’ problems with the rider, the need for anti-child abduction and child pornography legislation caused him to vote in favor of the PROTECT Act.

“It’s just unfortunate that this must-pass legislation was taken advantage of to move sweeping reforms of the larger U.S. criminal justice system, reforms the Senate did not debate and on which no hearings were held,” Baucus said.

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