Document Type

Article

Publication Title

Boston University Law Review

Publication Date

1999

Abstract

Can a judge exercise discretion and follow the law? Some think it impossible, seeing discretion as the opposite of law. Others have harmonized the two ideas, viewing discretion as the exercise of judgment according to and within the bounds of the law. Those who decry judicial discretion urge legislatures to enact more specific laws and leave less room for the vice of inconsistent results. Those who defend discretion would channel it to achieve the virtue of individualized justice. The tension between individualization and uniformity in the law is often unnecessarily heightened by an inadequate analysis of judicial discretion. The exercise of judicial discretion in federal criminal sentencing exemplifies the problems arising from those inadequate analyses. The Sentencing Reform Act of 1984 ("SRA") dramatically altered federal criminal sentencing for the express purpose of controlling judicial discretion. Judges were once free to impose any sentence from probation to the statutory maximum and were not subject to appellate review regarding the length of that sentence. However, they are now bound by the Sentencing Guidelines 7 and subject to appellate review of the sentences they impose. Despite this dramatic change, or perhaps because of it, the Supreme Court has used the breadth and uncertainty of the concept of discretion to paper over the fundamental reallocation of sentencing power in an effort to buttress the limited authority judges retain to individualize sentences.

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