The Conservative Supremes?

The U.S. Supreme Court has just handed down a 7-2 decision which has the effect of saying that federal judges are relevant in criminal cases after all. The issue arises in this form because of the passage in 1984 of The Sentencing Reform Act. Previously, federal judges handled all sentencing decisions under a standard that said that sentences within the statutory terms were almost entirely unreviewable. The logic of this was that the judge is in the best position to be able to create a sentence to fit the offender and the offense.

Law and Order Conservatives, however, were not satisfied with this approach, and used the clout they found under Reagan to dramatically increase sentences in federal criminal cases. The statute itself was the work of Senator Ted Kennedy, and included the creation of a Sentencing Commission to deal with the issue of “sentencing disparity”, the concept that two identically placed defendants might not get the same treatment from two different courts.

Conservatives, then, hijacked the Sentencing Commission through Presidential appointments and created a system that increased the length of time served by almost all persons convicted in federal court. Parole was abolished, and “good time” was dramatically reduced. (Later, the “law and order” faction passed laws increasing sentences for crack cocaine over powder cocaine, creating racial sentencing disparity and this area was also visited by the Court today.)

Without getting overly technical, a couple of years ago the Supreme Court applied a line of cases that restored/preserved authority of juries to determine the relevant issues that result in causing persons to be convicted and sentenced for criminal violations, and said that the structure of federal sentencing law did not comport with the Constitution. The fault was that authority had been taken from juries and judges and given to The Sentencing Commission. The Federal Sentencing Guidelines were left in tact, but the portion of the 1984 Act that made application of them mandatory was struck down. It was this provision that had led to major discontent among U.S. District Judges, whose complaint was that they had been turned into number crunchers instead of being allowed to do their jobs.

The purpose of this review is to provide some background to illuminate the importance of the result, rather than to dissect either of today’s cases directly. Previously, the Court had said that it was restoring sentencing discretion to federal judges. The Bush Justice Department chose to interpret that as meaning that the disavowed sentencing guidelines created a floor under all cases, and that judges could easily go up from there but not down. The two cases reviewed today both involved cases where the judges acknowledged the guidelines as being a matter considered and then articulated reasons for structuring sentences less than the guidelines and the particular prosecutor felt warranted. Thus the reasonable conclusion that federal judges have been restored to relevancy in their own courtrooms.

(As an aside, it can be noted that Alito and Thomas broke with their Brethren and went with the DOJ position.)

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