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November 8, 2006

The big other branch questions after the election

In response to prior posts here and here, commentators have suggested that Democrats now in power in Congress are unlikely to push significant sentencing reform that could subject them to attacks for being "soft on crime."  Though I am hopeful that split federal government might lead to a more balanced sentencing policy discussion, I think the really big questions now are how the sentencing work of other branches are impacted by the changes in Congress:

1.  Will DOJ continue to push for topless guidelines?  Though I was never sure the Justice Department really wanted a topless guidelines system, its express advocacy for this sort of Booker fix has influenced both the politics and practices of the post-Booker world.  I am eager to see if, when and how DOJ might change its Booker fix tune in light of the new balance of power in Congress.

2.  Will the Sentencing Commission and federal judges be bolder?  Over the last two years, I have repeatedly heard the USSC and federal judges express concerns about possible congressional backlash to any pro-defendant changes in the federal sentencing system.  Sentencing Commissioners have suggested Congress would might react poorly if the USSC made a bold move on the crack/powder guidelines.  The high within-guideline sentencing rate after Booker reflects, in part, district judges' concerns about Congress's response if judges too frequently varied from the guidelines.  Might these inter-branch dynamics change significantly now?

November 8, 2006 at 08:50 AM | Permalink


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