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The federal sentencing guidelines and the end of the adversary system
By Lawrence Goldman
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President's Column columns.
As I write, Congress, at the behest of the Department of Justice, is
considering a bill that will minimize the already limited discretion
federal judges have in sentencing matters. If the bill passes the
Republican-controlled Congress, there will be a further shift of power
to the prosecutor, who already determines who to charge, what to charge,
and, often, what the sentence will be. The role of the judge in the
vast majority of criminal felony cases, those which result in guilty
pleas, will be limited in most instances to determining where in a
narrow range — essentially determined by the prosecutor — the defendant
should be sentenced.
The practice of criminal law in the federal courts is already far
different than it was some years ago before the Sentencing Guidelines
were enacted and, largely as a result of the Guidelines, the United
States attorney was given effective control of sentencing decisions.
The adversary system that we learned about in la
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