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November 10, 2008

How a new administration is likely to impact federal sentencing practice

It likely will be some time before anyone can predict how an Obama Administration might seek to alter federal sentencing law and policy.  (The naming of a new Attorney General and other key DOJ appointments may provide some signals, but the federal sentencing system is probably a low priority matter compared to other key crime and justice concerns.)  However, if past is prologue, we can already start to predict ways in which the incoming administration might impact federal sentencing practice.

During the Clinton Administration, as Frank Bowman and Michael Heise effectively document in their Quiet Rebellion articles (abstract here), there was a discernible tendency for front-line sentencing actors to exercise their discretion in favor of leniency in federal drug cases.  During the Bush Administration, according to data from the US Sentencing Commission, there was a discernible tendency for front-line sentencing actors to recommend and impose within-guideline sentences even more frequently in nearly all types of cases.  Though these ground-level sentencing trends partially reflected formal legal and policy developments, they also clearly reflected informal institutional and attitudinal realities that necessarily echo through the discretionary judgments made by thousands of federal prosecutors and judges dealing with tens of thousands of federal sentencing cases every year.

In other words, the institutional structures and attitudinal environment for prosecutors and judges established by a new administration will impact federal sentencing practice in ways that necessarily transcend (and may be more profound) than any formal changes to federal sentencing law and policy.  And, especially now that Booker and its progeny have further enhanced the discretionary power and responsibilities of front-line sentencing actors, I expect that we may start to see notable changes in the federal sentencing outcomes even before any tangible changes in federal sentencing law and policy.

November 10, 2008 at 07:18 AM | Permalink


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In the case of the Bush Administration, continued support for the Guidelines was more than a tendency, it was the order of the day. In a memorandum dated January 28, 2005, just two weeks after the release of the Booker opinion, Deputy Attorney General James B. Comey directed “all federal prosecutors” to “take all steps necessary to ensure adherence to the Sentencing Guidelines.” He further directed, “[f]ederal prosecutors must actively seek sentences within the range established by the Sentencing Guidelines in all but extraordinary cases.” “[I]n any case in which the sentence imposed is below what the United States believes is the appropriate Sentencing Guidelines range ... federal prosecutors must oppose the sentence... .” He also required that any sentence outside of the Guidelines must be reported to the Department of Justice.
This disdain for branches of government other than the executive has been one of the hallmarks of the Bush Administration. There are not many lawyers who can get away with instructing their colleagues to ignore the U.S. Supreme Court, let alone the second highest law enforcement officer in the country.
What Obama could bring to the table would be a respect for the Booker decision that would allow AUSA's in appropriate cases to agree to sentences outside of the Guidelines, particularly with those Guidelines that have now been shown to have little to no foundation and support.

Posted by: Sumter L. Camp | Nov 10, 2008 11:14:32 AM

I'm not sure how it shows "disrespect" for the Booker decision for the lead federal prosecutor to instruct line federal prosecutors about how to use their prosecutorial discretion and about what arguments to make to the courts.

Interestingly (to me, at least), the Google search I did for the memo turns up this blog as the first hit: http://sentencing.typepad.com/sentencing_law_and_policy/2005/02/dojs_postembook.html

Sumter Camp's description of it is inaccurate. If anyone's interested in what it actually says, it's here:

Posted by: | Nov 10, 2008 11:50:35 AM

How do you think the new admistration will effect the following:

Unconstitutional Ex-Post Facto application of the Adam Walsh Act?
All of the laws, which are effectively creating a new Under Class of people, much like the Blacks, and Jews... the Sex Offenders. If one can be labeled a Sex Offender, many years after the completion of sentence for a particular offense, our government is allowing many NEW laws and restrictions to be placed on people, and the new laws ONLY effect those who have been convicted of any type of crime involving, even remotely, sexual things.
Such as, 2-8 year old children, playing You show me yours, I will show you mine.. will get that 8 year old a lifetime of being labled a Sex Offender and all which that designation encompases. How do you think the new AG will rule on these unconstitutional laws?

Posted by: Concerned | Nov 21, 2008 4:55:22 PM

That's a common problem on the adminisnitrative scene but it haves a really easy solution ya know.

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