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The Arc of the Pendulum: Judges, Prosecutors, and the Exercise of Discretion, 117 YALE LAW JOURNAL 1420 (2008)


Early scholarship on the Federal Sentencing Guidelines focused on the transfer of sentencing authority from judges to the Sentencing Commission; later studies examined the transfer of discretion from judges to prosecutors. Of equal significance are two other institutional competitions for power: one between local federal prosecutors and officials in the Department of Justice in Washington ("Main Justice"), and the other between Congress and the Supreme Court. Congress's enactment of the Feeney Amendment in 2003, in reaction to sentencing data and decisions appearing to reveal that sentencing judges were willfully ignoring the Guidelines, represented a direct challenge to every level of the federal judiciary, to the Sentencing Commission, and to front-line federal prosecutors. By design, this legislation simultaneously empowered Main Justice, which was Congress's partner in the endeavor to achieve nationwide "compliance" with the Sentencing Guidelines. In its 2005 decision in United States v. Booker, the Supreme Court undid the Feeney Amendment, introduced the opportunity for judges openly to exercise judgment independent of the Guidelines, constrained the leverage that inheres in prosecutors in a mandatory sentencing regime, and counteracted the centralizing impulse of Main Justice. The Court's recent decisions elaborating Booker confirm that, once again, sentencing is to a significant extent a "local" event. The Sentencing Commission and Main Justice may still be calling signals but the decision makers on the playing field-judges and prosecutors - need not follow them. The pendulum of sentencing practice may increasingly swing back toward the exercise of informed discretion as newly appointed local decision makers are able to see beyond the narrow and arbitrary "frame" of the Federal Sentencing Guidelines.

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