From the inimitable, irreverent, excellent Neal Pollack at The Maelstrom on Senator Joe Biden and his planned attempt to sneak the Rave Act past the House-Senate Conferees and into the Amber Child Alert bill:

Now you must excuse me. I'm going to drive down to Delaware, where I assume Senator Biden still keeps an office. There I will snort a delicious line of cocaine. It's Biden's property. Therefore, my drug use is technically his fault. Prisoner Number 34093. Senator Joseph Biden. Convicted April 10, 2003, letting some guy snort coke in his office. Sentence, 50 years. Up for...in 30.

Here are the details of the House-Senate Conference on the Feeney Amendment, submitted by Kyle O'Dowd, Legislative Affairs Director for the National Association of Criminal Defense Lawyerss (NACDL):

The S.151 conferees met today and approved a Hatch-Sensenbrenner amendment to the Feeney provisions in the House-passed bill.  Senator Kennedy's second-degree amendment to strike the Feeney provisions altogether and direct the Sentencing Commission to study departures failed on a strictly party line vote, all Dems voting aye and all Repubs voting nay.

Sen. Hatch described his amendment as addressing the concerns raised by judges and others.  He suggested that it only affects departures in sex cases involving minor victims, while requiring the Commission to study other departures.  IN FACT, THE HATCH-SENSENBRENNER AMENDMENT RETAINS MUCH OF THE UNDERLYING FEENEY AMENDMENT AND DRAMATICALLY LIMITS DEPARTURES IN ALL CASES.  Indeed, the new amendment directs the Sentencing Commission to amend the guidelines and policy statements "to ensure that the incidence of downward departures are [sic] substantially reduced."

The following are the key components of the Feeney amendment as amended by
Hatch-Sensenbrenner.  It is based on a preliminary analysis of the complete text.

The House-Senate Conferees met today on the Feeney Amendment. The news is not good. Senator Kennedy submitted a secondary amendment to strike the Feeney provisions altogether and direct the Sentencing Commission to study departures. That failed on a strictly party line vote, with all Democrats voting in favor and all Republicans voting against it.

Hatch and Sensenbrenner submitted an Amendment. They are presenting it as a compromise amendment that only limits prevention of downward departures to sex cases with minor children and merely requires the Commission to study other departures. It's not true. We've seen a preliminary point-by point-analysis prepared by two pre-eminent legislative analysts. We can't publish it yet because it's not in final form and we don't have the authors' permission. We hope to have a final analysis from them tomorrow and will reprint it here.

Here's what we can say for now. The Hatch-Sensenbrenner Amendment Retains Much of the Underlying Feeney Amendment and Dramatically Limits Departures in All Cases. In fact, the Amendment directs the Sentencing Commission to amend the guidelines and policy statements "to ensure that the incidence of downward departures are [sic] substantially reduced." There's a lot more, stay tuned.

This just in from Drug Policy Alliance:

Senator Joe Biden (D-DE) is at this very moment attempting to sneak the RAVE Act into conference committee on the National AMBER Alert Network Act of 2003 (S151). S151 is a popular bill about child abduction and has nothing to do with drug issues. S151 has already been passed by the Senate and House and is now in Conference. In contrast, the RAVE Act has not passed even one single committee this year. It did pass a committee last year, but was so controversial two Senators withdrew their sponsorship after the vote.

This means that if the RAVE Act passes the conference committee, it is likely to become law without ever having a hearing, a debate or a vote. Drug Policy Alliance has been told that Senator Biden has told other conference committee members, incorrectly, that the ACLU is no longer in opposition to the action. He also has told conferees that nightclub owners now support him (on the basis of one group that switched sides). If the act makes it into the conference language it is likely to become law. It must be stopped now.

PHONE YOUR SENATORS and Conference Committee Members (Background
information below). DO IT NOW. If you do not respond to this alert, the controversial RAVE Act is likely to become law and it will be much harder to fix.

ACTIONS TO TAKE:

Here are the details of the Rave Act and the Clean-Up Act from Drug Policy Alliance:

Congress is considering two pieces of legislation that could effectively ban live music and dancing, while throwing innocent people like you in jail. If enacted, either bill could prevent you from hearing your favorite band or DJ live. Every musical style would be affected, including rock and roll, Hip Hop, country, and electronic music. The proposed laws could also shut down hemp festivals, circuit parties, and other events government officials don’t like. Both bills would allow overzealous prosecutors to send innocent people to jail for the crimes of others. The two bills are the RAVE Act (H.R. 718) and the CLEAN-UP Act (H.R. 834). Both could be passed this year without your help.

The National Association of Criminal Defense Lawyers continues its effort to stop the Feeney Amendment by lobbying individual members of Congress, notifying federal judges, and helping to bring about favorable editorials.

The conference committee (comprised of select members of the house and senate judiciary committees) will meet tomorrow afternoon to hammer out a final bill.

If the Feeney Amendment makes it out of conference committee, it will be extremely difficult to stop. Now is the time to notify your federal judges and lobby your members of congress -- particularly if you are represented by any of the republican conferees. Be sure to call their attention to the federal judicial conference letter in opposition.

The judicial conference letter, the Washington Post and New York Times editorials, a list of the conferees with contact information, and other related documents are available on NACDL's comprehensive and up-to-date web page.

Background of Feeney Amendment to W. 151:

The House of Representatives passed legislation on March 27 that would, among other things, radically limit judicial discretion to grant downward departures from the federal sentencing guidelines. This legislation -- sometimes referred to as the Feeney Amendment -- constitutes an extraordinary transfer of power to federal prosecutors, dramatic changes to the laws and procedures that govern sentencing and a drastic encroachment on the independence of the federal judiciary. It places virtually all sentencing discretion in the hands of federal prosecutors. The amendment was attached to child abduction legislation at the last minute in an effort to avoid a debate of its merits and a discussion of its flaws. No input from the sentencing commission, the bar or federal judges was sought.

Here's more, from another defender email we just received:

The New York Times weighs in against the Feeney Amendment in An Ominous Attack on Judges.

We need to defeat this amendment and save downward departures and judicial independence. For more, go here. And read Law Professor Jeff Cooper's great analysis and commentary here.

Bump and Update: Law Professor Jeff Cooper provides an excellent, detailed and unbiased explanation of the Feeney Amendment, and concludes it represents an injustice that deserves Congressional rejection.

Update 2: The Washington Post editorial opposing the Amendment is here. The American Bar Association joins the call for defeat of the Feeney Amendment. You can read their letter here.

On April 3, the Federal Judicial Conference sent Senator Orrin Hatch (R-UT) a strongly-worded letter opposing the Feeney Amendment. You can read the letter here.

Lawyers are encouraged to bring this letter to the attention of their local federal judges and, if the relationship permits, suggest that the judges contact, first and foremost, Senator Hatch and, secondly, Senators Chuck Grassley (R-IA), Jeff Sessions (R-AL), and Lindsey Graham (R-SC).

A comprehensive set of materials on the Amendment, including sample letters, has been published on the NACDL website here, accessible here.

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FAMM (Families Against Mandatory Minimums) joins NACDL (National Association of Criminal Defense Lawyers) and other organizations in calling for defeat of the Feeney Amendment to the Amber Alert bill passed by the House last week.

This legislation, referred to as the Feeney Amendment, constitutes an extraordinary transfer of power to federal prosecutors, dramatic changes to the laws and procedures that govern sentencing and a drastic encroachment on the independence of the federal judiciary. It places virtually all sentencing discretion in the hands of federal prosecutors. The amendment was attached to child abduction legislation at the last minute in an effort to avoid a debate of its merits and a discussion of its flaws. No input from the Sentencing Commission, the bar or federal judges was sought.

Here's what will happen if the Amendment passes:

Findlaw Columnist Edward Lazarus argues against the federal sentencing provisions that were made part of the Amber Alert bill passed by the House last week. The provisions would lessen federal judges' discretion in sentencing. He wisely notes that the discretion provided federal judges under the Federal Sentencing Guidelines is already so narrow, Congress shouldn't tinker with it further.

Matt Welch has an excellent article in today's Alternet about Patriot Act II.

We hope a sleeping Congress doesn't let this one sneak by like it did Patriot Act I, which was passed in haste, without hearings and without adequate time for serious review by Congress. We've believed since news leaked of Patriot Act II that it has been Bush and Ashcroft's intention to wait until we are in the throes of war with Iraq and then push it quickly though a Congress as a necessary measure to fight terrorism, thereby making legislators who oppose it look unpatriotic.

Here are Matt's summary of the provisions, taken from Nat Hentoff's column in the Village Voice a few weeks ago:

The House of Representatives today passed a bill that would defer student loan payments for those on active duty in the military. The bill passed 421-1.

Who voted against this and why? This is a no-brainer to us. We're only sorry the alternative version was defeated. It would have deferred interest accrual on the loans as well as payments while on active duty.

The bill also requests colleges to refund tuition to those who paid and got called up--and to make it easier for the students to re-enter when their military service is over.

The bill is H.R. 1412, which now moves on to the Senate.

This just in from Kyle O'Dowd, Legislative Director for the National Association of Criminal Defense Lawyers ( NACDL):

On March 27, the House of Representatives approved an amendment to child abduction legislation that would significantly impair judicial discretion to depart downward under the Sentencing Guidelines. The amendment, described below, was filed the evening before the floor vote on the unrelated bill. While this is not the first legislative attempt to limit downward departures, it is by far the most sweeping. And the bills provisions have never been considered by the House or Senate Judiciary Committees. A procedural maneuver will allow the bill to go to conference with the Senate immediately.

Offered by Rep. Feeney (R-FL) with the full support of Chairman Sensenbrenner (R-WI), the legislation would, among other things:

(1) Prohibit downward departures based on factors that are not specifically enumerated in the Sentencing Guidelines;
(2) prohibit certain types of departures, such as those based on youth, aberrant behavior, family responsibilities, military service, and a combination of factors;
(3) strictly regulate "fast track" departures in illegal reentry cases and limit such departures to 4 levels;
(4) prohibit departures based on diminished capacity in cases involving obscenity and sex offenses;
(5) require de novo appellate review of departure decisions, effectively repealing Koon v. United States;
(6) require a government motion before a judge can award the additional one-level reduction for extraordinary acceptance of responsibility; and
(7) require that the Attorney General report downward departures not based on substantial assistance to the House and Senate Judiciary Committees, including the identity of the judge, the facts of the case, and other information.

The National Association of Criminal Defense Lawyers ( NACDL) and other organizations sent the following letter in opposition. Plans are being made to move the opposition to the Senate. We will update as soon as there is more news on this.

The other organizations opposing the measure are:

Leadership Conference on Civil Rights
National Legal Aid and Defender Association
Families Against Mandatory Minimums
American Civil Liberties Union