The Feeney Amendment and Separation of Powers.

I have a new legal challenge to the Feeney Amendment. Please share your thoughts with me.

Does vesting significant sentencing decisions in the hands of the executive impermissibly abrogates the judicial power? Under the American constitutional system, there is to be a strict separation of powers between each co-equal branch of government. But in practice, "[w]hile people sometimes refer to the three branches of the federal government as a three-lawyer cake, it is more accurate to think of it as a marble cake." John E. Nowak & Ronald D. Rotunda, Constitutional Law §3.5 (6th ed. 2000). Thus, a prosecutor's decision on what charges, if any, to bring will ultimately impact the available options at sentencing. Bordenkircher v. Hayes, 434 U.S. 357 (1978) (finding no Due Process violation when a state prosecutor reindicts defendant on a more serious offense when the defendant did not plead guilty to the crime with which he was originally charged.) And the prosecution holds almost absolute discretion in this area.

However, the Feeney Amendment conditions the trial court's sentencing decision upon prosecutorial approval. For example, under §5K3.1 the judge may issue a four-level early disposition downward departure only "[u]pon motion of the Government" and when "authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides." Under §3E1.1(b)(1), the trial court may give the defendant an additional base level increase of one only "upon motion of the government [ ]." This conduct seems to confer upon the executive power beyond its proper prerogative and almost amounts to an "executive veto" of judicial sentencing decisions. And like the "legislative veto" Congress improperly reserved for itself in INS v. Chadha, 462 US 919 (1983), the executive's effort to dictate sentencing decisions should be struck down as unconstitutional.