CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, June 23, 2020

Schwarzschild on The Bureaucratic Takeover of Sentencing

Maimon Schwarzschild (University of San Diego School of Law) has posted The Bureaucratic Takeover of Criminal Sentencing (49 New Mexico Law Review 93 (2019)) on SSRN. Here is the 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This article explains how and why power over criminal sentencing was largely withdrawn from federal judges, and how this accelerated the trend toward more severe sentencing.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 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.

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