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Report: Federal judges using more discretion in sentencing

The question of how much discretion federal judges should have when sentencing criminal defendants is an important one, and opinions have changed over time. In the 1980s and 1990s, Congress passed a large number of strict, mandatory minimum sentencing requirements.

These laws stripped judges of their traditional discretion to choose what sentence is reasonable or fair under the circumstances. They mandated certain sentencing ranges regardless of the facts of the specific case. Appeals courts were prevented from resentencing people, even in cases of clear injustice.

In 2005, the U.S. Supreme Court changed the game when it came to federal criminal sentences. In a case called U.S. v. Booker, the high court made several important rulings:

  • Other than prior convictions, any facts used to calculate a criminal sentence must be proved beyond a reasonable doubt.
  • Federal district judges are not entirely bound by sentencing rules but can reference more general factors set forth in the federal sentencing guidelines.
  • Federal appellate judges have the authority to review sentences for "reasonableness."

The Booker ruling was especially important because harsh, mandatory minimum sentencing has fueled mass incarceration by mandating extremely long sentences for people convicted of relatively minor offenses, especially drug offenses.

New report shows Booker's impact

The U.S. Sentencing Commission, which is responsible for setting federal sentences in accordance with Congressional intent, recently issued a report on federal sentencing after the Booker ruling. Now that federal judges have greater discretion, we would expect to see a larger differential between sentences handed down by different judges. Did that occur?

In 25 out of 30 cities studied, it did. You would expect that. As one law professor noted, "Certain judges are the 'hang 'em high' type, and others are the 'cry me a river' type."

At least in some cities, "cry me a river" is now winning out for many defendants. In Philadelphia and Chicago, for example, deviation from the federal sentencing guidelines is noticeable, with judges tending to hand down more lenient sentences more often.

That's an important step toward reducing mass incarceration, but judicial discretion can have a downside. Another Sentencing Commission report from 2017 indicated that not everyone is benefiting equally from more leniency. While white men were likely to get sentences that were more lenient than the guidelines called for, African-American men tended to receive guideline sentences. As a result, African-American men are being sentenced more harshly for similar crimes.

Judicial discretion can be a crucial check on unreasonably harsh sentencing laws, but the racial disparity in sentencing remains a source of injustice. The federal sentencing guidelines may need to be updated to address racial disparities when they can be identified.

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