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June 16, 2009

"DOJ's Attack on Federal Judicial Leniency, the Supreme Court's Response, and the Future of Criminal Sentencing"

The title of this post is the title of this great-looking new article appearing on SSRN from Professors Susan Klein and Sandra Guerra Thompson.  Here is part of the piece's abstract:

The last few years have brought some equilibrium to the power struggle in the federal system between prosecutors, judges, and Congress over criminal sentencing.  Though pieces of this story have been shared and various Supreme Court sentencing cases analyzed, our unique contribution is to explain how and why a true sentencing reform movement that began in the mid-1980's was co-opted by conservative politics at the federal level at the turn of this century, thereby eliminating one avenue of change entirely for all federal and state actors....

As a result of the last few terms, many of the recent victories that the Department enjoyed in the political arena it lost in the courts.  Under the administration of Attorney General Alberto R. Gonzales, the Department continued its push for more stringent punishments, but changes in circumstances required a new approach.  Congress considered and rejected new legislation that might constitutionally replicate DOJ's earlier coup.  When DOJs Republican allies in Congress lost their majority position after the 2006 elections, the push for harsher punishments slowed considerably.

We expect Attorney General Eric Holder to back away from harsh sentencing laws and tight control over Assistant United States Attorneys (AUSA) in the field. We now see federal district judges sentence below the range provided in the federal sentencing guidelines with building frequently, yet not ignore the guidelines. Though states judges never suffered in the same manner, we expect state legislators to react to the new constitutional requirement by increasing state judicial discretion in sentencing through advisory rather than mandatory guidelines, and expanding judicial authority to stack sentences.

June 16, 2009 at 03:43 PM | Permalink


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