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

39 Pages Posted: 13 Jun 2009 Last revised: 10 May 2017

See all articles by Susan R. Klein

Susan R. Klein

University of Texas School of Law

Sandra Guerra Thompson

University of Houston Law Center


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. Part I belongs to Main Justice. (see Note below) It was during the early days of George W. Bush's administration that the Department of Justice began its all-out assault on the federal judiciary's sentencing powers as part of a campaign to consolidate central authority and to require the harshest possible sentences for all federal convictions. DOJ's campaign was played out in numerous arenas at the same time: (1) in Congress, where DOJ urged the adoption of laws addressing the problem of leniency of district court judges; (2) before the U.S. Sentencing Commission (Commission), which DOJ chided for not doing enough about the leniency problem; and (3) even among its own field offices by attempting to virtually eliminate the traditional charging discretion exercised by prosecutors and instead mandating that all federal prosecutors bring the most serious charges provable.

Eventually, as the straw that broke the Court's back, the Department succeeded in prompting Congress to enact the Feeney Amendment, a piece of legislation that was viewed as a frontal assault on the discretion of federal judges in sentencing. Though the show is far from over, the Supreme Court regained the upper hand over both DOJ and Congress, as we explain in Part II, by trumping Congress's legislation (and DOJ's political agenda) on constitutional grounds. In United States v. Booker the Court upheld the overall constitutionality of the federal sentencing system but only on the condition that the Guidelines be applied in a purely advisory manner, subject to extremely weak appellate review for reasonableness. The Supreme Court gave the power over sentencing that Congress had transferred to DOJ back to judges. The Court reaffirmed that position in a series of additional Sixth Amendment cases decided in the October 2007 and 2008 Terms: Gall v. United States, Kimbrough v. United States, (both heard in the October 2007 Term) and Spears v. United States, (heard in the October 2008 Term) firmed federal district judge discretion through rigid limits on appellate reversals. The Court appeared far less concerned with the effects of its opinions on state criminal justice systems. This was sensible, as most states don't have mandatory sentencing guideline systems or presumptive sentencing systems, those states that do build more judicial flexibility in their systems, and state legislators are not at war with their judiciary, the Court's new constitutional rulings in fact had significantly less effect on state than on federal sentencing. This is not to say, as we note in Part III, that the Court entirely ignored the states; two recalcitrant states were pointedly reminded of the Blakely/Booker rule, and the Court in its most recent sentencing decision, Oregon v. Ice, (heard in the October 2008 Term) granted state trial judges even more discretion through the practice of imposing concurrent or consecutive sentences for multiple offenses. 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.

Note: This is the not always respectful designation of the Attorney General, other political appointees, and trial attorneys working on Pennsylvania Ave. and other downtown D.C. locations, as distinguished from the 94 U.S. Attorney's Offices located throughout the United States.

Suggested Citation

Klein, Susan R. and Thompson, Sandra Guerra, DOJ's Attack on Federal Judicial Leniency, the Supreme Court's Response, and the Future of Criminal Sentencing. U of Texas Law, Public Law Research Paper No. 154, Available at SSRN: or

Susan R. Klein (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1324 (Phone)
512-471-6988 (Fax)


Sandra Guerra Thompson

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States

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