My focus in this short essay is only on sentencing. A judge’s role is different at sentencing than her role at other points in a criminal trial, or in other contexts.
The stakes are the highest; it is when state power confronts a person’s liberty. And I write for the most part about what I know best, which is federal sentencing. Federal sentencing has changed over the past forty years and with it the judge’s role. It has seesawed from a period when the purpose of sentencing was rehabilitation, and a judge had virtually unlimited discretion to sentence (Gertner 2010). It then moved to a more recent period when a judge’s power was more strictly cabined by mandatory minimum sentences, and mandatory Federal Sentencing Guidelines. Finally, it has shifted to the present which is—at least on the surface—some combination of both. Today, there is space for more judicial discretion. On the surface, that change—increasing judicial discretion—looks promising.
More judicial discretion might well be an antidote to treating people as Guideline categories or cogs in a three-strikes machine. Reformers sometimes assume that when judges focus on an individual, they will necessarily consider their humanity and the social context of the crime, all factors that have largely been ignored during the past thirty years. But there are reasons to be skeptical.
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