"Movements in the Discretionary Authority of Federal District Court Judges Over the Last 50 Years"

The title of this post is the title of this new paper authored by Susan Klein now available via SSRN.  Here is its abstract:

From my vantage point, judges’ individual control over their courtrooms remains largely stable.  Updated but similar versions of the problems encountered (and created) by Judge Julius Hoffman now confront our newer, younger, and perhaps better qualified judges.  While federal judges may be less likely to encounter radical, overtly political defendants and government officials trying to wrest control (and public opinion) from them in court, they are more likely to see minority defendants along with accompanying “courtwatchers” who want inequities in the criminal justice system noticed in individual cases.  I will first describe the Chicago Eight (soon to become the Chicago Seven) trial and then explain the new courtwatchers in Part I.

I have witnessed federal judges having lost, primarily since the mid-1980s, much of their earlier control over the criminal justice process in general, but in particular over charging and sentencing decisions.  Judicial discretion and control over a criminal trial is obviously less important when 97.2 percent of federal felony sentences are imposed by the district judge pursuant to a guilty plea negotiated between the government and the defendant, and only 2.8 percent of the sentences that judges impose are after a jury or bench trial.  The power players in the criminal justice system are the folks who determine whether to offer a plea and what plea terms to include.  We live in a world of guilty pleas controlled by prosecutors.  Federal prosecutors determine whom to investigate, whom to charge, and how much punishment to impose.  However, the pendulum has begun to swing back, and federal district judge discretion over criminal sentencing is now on the rise.  I will support these observations, as well as offer some good sentencing news post-Booker, in Part II.

Finally, in Part III, I will raise a relatively new phenomenon — federal district court judges imposing nationwide temporary restraining orders against the federal government. Though this last trend is not limited to or primarily about criminal trials, I think it fairly covered by the topic for today — most of these injunctions involve controversial policies that can, like with the Deferred Action for Childhood Arrivals case, lead to criminal charges.  This legal device allows a single federal judge in a single judicial district to determine federal policy for the entire country, at least until the matter can be resolved by the Supreme Court.  This is one of the few areas where I have seen federal district judicial authority expand over the last few decades.  The Supreme Court has taken very recent notice of this trend, and will likely have something to say about the matter soon.

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