The pendulum is swinging again – not by Vincent Price or Edgar Allen Poe – but federal judges are swinging it again.  The problem of sentencing disparities is at the forefront.  DOJ has weighed in and is complaining about disparate treatment of equally culpable offenders across districts.  In particular, the Department is concerned about white collar criminals and the increasing sentencing disparities of these offenders.

This is not a new issue.  When I worked on Capitol Hill in the last decade, we wrestled with the issue.  The sentencing guidelines were “mandatory” but yet judges were wiggling out of them in order to dispense their version of “justice.”  The Supreme Court’s Booker decision in 2005 freed judges from any “mandatory” requirement and reduced the guidelines to “advisory.”  Once freed, the disparities increased.

The sentencing guidelines, which were originally adopted in the mid-1980s as a result of the Sentencing Reform Act, had bipartisan support.  The rallying cry was “equal justice.”  Similarly situated criminals were being sentenced to disparate sentences.  The luck of the draw on the judge assigned to a case was the more important predictor of an offender’s sentence.  In the same courthouse, offenders were given probation in one courtroom while just next door a similar offender was put in jail for a number of years.

Federal judges do not like being told what they have to do, especially when it comes from members of Congress or the US Sentencing Commission.  As one famous DC jurist once told me, “In my courtroom, I am the boss, and I really do not care what three jokers upstairs [Court of Appeals is on the Fifth Floor] have to say about what I do.”  Or another judge once stated in open court and on the record, “I know the law requires me to impose a sentence of [X], but I am going to sentence the defendant to [Y].”

In some respects, federal judges bring it on themselves.  They cannot help themselves because in their courtrooms they truly are king/queen of the castle. 

Congress may have something to say but the likelihood of a consensus ever developing is very remote, especially with falling crimes rates and greater public compassion for rehabilitation and reducing recidivism.