The Bureaucratic Takeover of Criminal Sentencing

49 New Mexico Law Review 93 (2019)

San Diego Legal Studies Paper No. 20-454

14 Pages Posted: 13 Jun 2020 Last revised: 7 Jul 2020

Date Written: 2019

Abstract

Criminal sentencing in the federal courts was transformed by the Sentencing Reform Act of 1984, which launched a bureaucratic takeover of sentencing. It was an extraordinary transfer of authority from federal trial judges to the new United States Sentencing Commission, a centralized and essentially non-judicial bureaucracy. Liberals and conservatives in Congress joined to do this out of mistrust, for very different reasons, of federal judges.

The Commission’s sentencing Guidelines - misnamed insofar as they were at least for a time compulsory - still loom powerfully over federal sentencing, with a distinct tilt toward severity. Although the Supreme Court in 2005 cut back the compulsory force of the Guidelines, the “gravitational pull” of the Guidelines is such that most federal sentences still conform to the Guidelines. Moreover, pressure to maintain or increase bureaucratic control over sentencing is likely to persist.

This article explains how and why power over criminal sentencing was largely withdrawn from federal judges, and how this accelerated the trend toward more severe sentencing.

When individual figures of authority, like judges, are mistrusted, there is a tendency to place or misplace faith in bureaucracy, with its real or imagined attributes of regularity, rationality, and impartiality. Those on the liberal or progressive Left who supported the Reform Act and the ensuing Guidelines regime might not have much reason to be pleased with the results. Those on the Right who supported the change in order to stiffen federal sentencing did, at least for a time, achieve their goal.

Keywords: United States Sentencing Commission, Sentencing Guidelines, Federal Courts, Federal Judges, Sentencing, Criminal Procedure, Bureaucracy, Regulation, Administrative Law

Suggested Citation

Schwarzschild, Maimon, The Bureaucratic Takeover of Criminal Sentencing (2019). 49 New Mexico Law Review 93 (2019), San Diego Legal Studies Paper No. 20-454, Available at SSRN: https://ssrn.com/abstract=3623277 or http://dx.doi.org/10.2139/ssrn.3623277

Maimon Schwarzschild (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2343 (Phone)
619-260-4791 (Fax)

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