In the brave new world of federal sentencing post-Booker, a judge's discretion to impose the sentence the judge deems "just" has expanded. While years may pass as courts struggle to define the limits of that expansion, individual defendants may benefit or suffer as a result of the broadened authority that judges will wield.
Judges who want to sentence more harshly than the guidelines would permit may now have that power. Judges sometimes comment at sentencing that they would exceed the guidelines if they could: now they may have that chance. Judges are constrained by an appellate court's review of the "reasonableness" of the sentence, but the degree of deference owed to judges who exceed the guidelines is likely to be hotly contested, and may provoke disagreement among the circuits.
On the other hand, judges who oppose the unjustly harsh sentences that the guidelines often mandate seem to have a new opportunity to tailor sentences to the unique circumstances of each case. The limits of discretion are again unclear, and the Justice Department complains that this discretion will lead to varying sentences for similar crimes. We can hope that judges will agree with this editorial:
A foolish uniformity isn't fair. Yet that is what the guidelines had been producing. And that is why a federal judge in New York resigned in protest in 2003, calling the guidelines "unnecessarily cruel and rigid."
And we can join this editorial in urging Congress not react to Booker with its usual "tough-on-crime chest-thumping" by enacting more mandatory minimums. (Other editorials striking the same note: here and here and here.)
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