Federal Sentencing in 2007: The Supreme Court Holds - The Center Doesn't

Abstract

This article takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Gonzales discovered that U.S. Attorneys can bite back - at least when Congress wants them to. In the Supreme Court, the trio of Rita v. United States, Gall v. United States, and Kimbrough v. United States enshrined the reasonable district court as the ineffable place where federal criminal policy, sentencing philosophy and individualized judgment merge. In contrast to the Supreme Court's sentencing cases, which focus on the allocation of authority between judges and juries, and the bulk of the sentencing literature, which pits prosecutors against judges, the institutional pairing highlighted here is Main Justice vs. the Districts, with Justice Department sentencing policies since 2001 considered in the larger context of DOJ efforts to exercise power over U.S. Attorneys' Offices.

What has often been framed as judicial discretion might better be seen as a coordinated exercise in local norm setting, an exercise in which line prosecutors, through charging power and shared control over investments in information gathering (in tandem with agencies), inevitably play a critical role. The extent to which prosecutors will be allowed to explicitly embrace the power they tacitly exercise already, and whether an illusory regime of sentencing uniformity will give way to a real one of collaborative norm articulation and development remains to be seen. But the suggestion here is that the new sentencing cases may point the way to a healthier federal criminal justice system.

Keywords: sentencing, federal criminal law, prosecutors, Department of Justice

JEL Classification: K14, K42