For the past six years, since U.S. v. Booker was decided, federal judges have dramatically more discretion in sentencing for most, but not all, crimes. Each year an increasing number of judges ignore the federal sentencing guidelines and exercise their discretion to impose lighter sentences than called for by the guidelines. Many courts apply the guidelines less than half the time. But the discretion of federal judges in sentencing is not absolute — they still must impose stringent and harsh mandatory sentences for certain gun and drug offenses, violent crimes and child-pornography offenses. These two incongruent sentencing systems — advisory guidelines and mandatory minimum sentences — have led advocates on both sides to argue that sentencing reform again is needed. But is Congress likely to act to fix federal sentencing laws? And if it does, will it expand judicial discretion by repealing mandatory minimum sentences or will it curb judicial discretion by strengthening the guidelines?

Congress has not undertaken comprehensive sentencing reform since it passed the Sentencing Reform Act of 1984 with broad bipartisan support (the vote in the Senate was 85-3). The changes wrought by the act were massive, and included a repeal of the authority of federal courts to suspend criminal sentences, the abolition of federal parole and the creation of the system of mandatory sentencing guidelines. Few recall that the reform occurred from an alliance between the left, led by the late Sen. Edward Kennedy (D-Mass.), and the right, led by the late Sen. Strom Thurmond (R-S.C.).

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