It is one thing to have power, and another to use it.
Yesterday, the Supreme Court told federal trial judges that they had enormous discretion in sentencing criminal defendants, which will probably accelerate a mild trend toward more lenient sentencing. But if history is any guide, judges will continue to use their sentencing power relatively sparingly, specialists in sentencing law said.
The two decisions issued yesterday built on a 2005 decision that made the federal sentencing guidelines advisory rather than mandatory, which led to the modest trend toward leniency.
Now that the Supreme Court has again emphasized that federal trial judges have the discretion to move outside the guidelines, further departures are rather likely. But the size of that may not be huge, said Douglas A. Berman, a law professor at Ohio State University. “The really interesting question,” Professor Berman said, “is whether we get a more significant gravitation away from the guidelines.”
Frank O. Bowman, a law professor at the University of Missouri, said much depended on the willingness of trial judges to use their new power.
“Now that the Supreme Court has said, ‘Do more if you want to,’” Professor Bowman said, “one would certainly expect that that this time the district courts are going to start to be more assertive, if they want to be.”
But, by temperament and training, judges like to apply clear rules, and the guidelines, which are nothing if not detailed and elaborate, are just that sort of mechanical road map. The impact of yesterday’s decisions may therefore be more modest than their language.
Indeed, this week’s sentencing decision most likely to have the broadest short-term impact is not on the Supreme Court’s docket.
On Tuesday, the United States Sentencing Commission is set to decide whether more than 19,000 federal prisoners convicted on charges involving crack cocaine should be eligible for re-sentencing based on amendments to the guidelines that became effective last month. The amendments reduced the disparity between sentences for crack and powder cocaine.