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Who’s Afraid of the Federal Judiciary? Why Congress’ fear of judicial sentencing discretion may undermine a generation of reform
By Mark H. Allenbaugh
The great object of my fear is the
federal judiciary. That body, like gravity, ever acting with noiseless foot
& unalarming advance, [is] gaining ground step by step. . . . Let the eye
of vigilance never be closed.
— Thomas Jefferson in a letter to Spencer Roane, Mar. 9, 1821, as quoted in
James F. Simon,
What Kind of Nation 9 (2002).
If the hundreds of American judges
who sit on criminal cases were polled as to what was the most trying facet of
their jobs, the vast majority would almost certainly answer “Sentencing.” In no
other judicial function is the judge more alone; no other act of his carries
greater potentialities for good or evil than the determination of how society
will treat its transgressors.
— Hon. Irving R. Kaufman, United States District Court Judge for the Southern
District of New York, “Sentencing: The Judge’s Problem,” in The Atlantic
Monthly (Jan. 1960).
In 1951, Judge Kaufman sentenced
Julius and Ethel Rosenberg to death for espionage, which wer
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