The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion

Early analyses of the federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; more recent analyses have noted the transfer of discretion from judges to prosecutors. Of equal significance are two other power struggles: between local federal prosecutors and officials in the Department of Justice, and between Congress and the Supreme Court. In its 2005 decision in United States v. Booker, and its recent decisions elaborating Booker, the Supreme Court made a high-stakes move that boldly asserted significant responsibility and authority in sentencing judges, local prosecutors, and the Supreme Court itself. Although it was not the goal either of sentencing reformers, the actual result of the Guidelines regime that took effect in late 1987 was to transfer sentencing authority not to the United States Sentencing Commission, but to federal prosecutors and - particularly in recent years - to the Department of Justice in Washington. Congress' 2003 decision, in reaction to sentencing data that appeared to reveal that sentencing judges were willfully ignoring the Guidelines in a growing proportion of cases, to enact the Feeney Amendment represented a direct challenge to every level of the federal judiciary, to the Sentencing Commission, and to line-prosecutors. By design, this legislation, Feeney simultaneously empowered Congress' partner in the endeavor, the Justice Department in Washington. Booker (as well as Booker's immediate predecessor, Blakely v. Washington, and Booker's progeny handed down in 2007) can be understood as a collective decision by the Supreme Court - which for more than a decade had been loathe to intervene or even seriously analyze constitutional and other issues raised by the Guidelines - that it was constitutionally and institutionally obliged to act in order to undo the Feeney Amendment, to constrain the leverage that inheres in prosecutors in a mandatory sentencing regime, and to counteract the centralizing impulse of the Department of Justice. By introducing the opportunity for judges openly to exercise judgment independent of the Guidelines, Booker and its progeny not only allow judges to provide a counterweight to prosecutorial leverage over defendants, but may also counteract the constraints that the Justice Department moved to impose (in the wake of the Feeney Amendment) on line-prosecutors. Once again, sentencing is primarily a local event. After Booker, the Department in Washington may be calling signals, but the decision-makers on the playing field - prosecutors and their judges - need not hear the calls or abide by them.