Douglas A. Berman

Locating the Feeney Amendment in a Broader Sentencing Reform Landscape

2The commentary and other items in this Issue highlight that the Feeney Amendment can be located within the sentencing reform landscape in many ways.

Deciphering a Rosetta Stone of Sentencing Reform

There is so much that can and should be said about the so-called Feeney Amendment, it is hard to know where to start. Former U.S. Attorney Alan VinegradOs discussion of the Feeney Amendment in this Issue appropriately begins by observing that the Amendment contains Othe most farreaching changes to the federal sentencing laws since the creation of the Sentencing Guidelines.O Moreover, the process through which the Feeney Amendment was introduced and ultimately enacted, as well as the roles played by various individuals and institutions in this process, was as dramatic and noteworthy as is the AmendmentOs substantive changes to federal sentencing law. Indeed, the Feeney Amendment might be described metaphorically as a Rosetta Stone of sentencing reform: its substantive terms have so many features and so many insights can be drawn from its development and passage. Like the famed stone of Rosetta which helped scholars better understand the meaning of Egyptian hieroglyphics, the Feeney Amendment could help scholars better understand the dynamics of modern sentencing reform. Yet, because the Feeney Amendment has been awash in controversy, its introduction and enactment might readily produce more acrimony and confusion than perspective and wisdom. Consequently, with the hope of aiding understanding of an epochal development in federal sentencing reform, the Federal Sentencing Reporter is dedicating this Issue and a number of subsequent issues to the story of the Feeney Amendment. This first Issue is devoted principally to providing a basic documentary history of the development and passage of the Feeney Amendment: in the pages that follow we reprint an array of materials detailing the roots from which the Feeney Amendment grew and also reactions the Amendment has generated. (These materials are necessarily abridged because a truly exhaustive account of Feeney Amendment roots and reactions could fill an entire FSR volume.) Subsequent issues and articles in Volume 16 of FSR will provide in-depth analytic commentary on the meaning, import and impact of the Feeney Amendment, while also tracking how the Amendment gets implemented by the Sentencing Commission, the Department of Justice and the federal judiciary.

Windows into Sentencing Policy and Practice: The Crack/Cocaine Ratio and Appeal Waivers

As the guidelines enter their second decade, the evolution of federal sentencing policy and practice is now as important, if not more important, than the decisions made by Congress and the Sentencing Commission when the guidelines were first enacted. Two matters that have evolved into long-term controversies ? the disparate penalties for crack and powder cocaine and the use in plea agreements of waivers of the right to appeal guideline sentences ? provide particular insights into the politics and practices of modern federal sentencing. This Issue of the Federal Sentencing Reporter focuses on recent developments in these areas,1 along with a concluding article on upward departures for dangerous offenders.

Editor's Observations: Is Fact Bargaining Undermining the Sentencing Guidelines?

This Issue of FSR focuses on a heretofore unpub lished survey and report presented earlier this year to the U.S. Sentencing Commission by its Probation Officers Advisory Group (POAG). The documents reveal the deep current of dissatisfaction among federal probation officers about what they see as the widespread existence of plea agreements that misrepresent the facts of cases and prosecutors who withhold key information from presentence investiga tion reports and courts. FSR invited a number of practitioners and academics to assess the POAG survey. In the pages that follow, eight commentators offer a remarkable array of interpretations and insights that illuminate the nature of fact bargaining under the sentencing guidelines and suggest possible responses by the Commission, the Department of Justice and the courts.