Prolegomenon on the Status of the Hopey, Changey Thing in American Criminal Justice

This is an introductory essay to Volume 23, Number 2, of the FEDERAL SENTENCING REPORTER, which considers the state of American criminal justice policy in 2010, two years after the Change election of 2008. Part I of the essay paints a statistical picture of trends in federal criminal practice and sentencing over the last half-decade or so, with particular emphasis on sentence severity and the degree of regional and inter-judge sentencing disparity. The statistics suggest that the expectation that the 2005 Booker decision would produce a substantial increase in the exercise of judicial sentencing discretion and a progressive abandonment of the strictures of the Guidelines has begun to prove correct. However, the statistics also reveal that Booker has almost certainly increased geographical disparity in federal sentencing, and the available evidence suggests that inter-judge disparity has increased as well. Part II of the essay analyzes the responses of the major federal institutional actors – particularly the judiciary, the Department of Justice, the defense bar, the U.S. Sentencing Commission, and Congress – to the post-Booker advisory guideline system and considers the prospects for federal sentencing reform generally. It suggests that the mixed results of the Booker advisory guidelines experiment may contribute to its somewhat surprising longevity. The essay also takes a somewhat pessimistic view of the post-election prospects for useful federal sentencing reform. Parts III and IV of the essay introduce a series of terrific articles in this issue of FSR on state criminal justice developments, as well as an article reflecting on the addition of Justice Sotomayor, a former trial judge, to the Supreme Court