Public Release: 

Congressional constraints on federal judges deemed unnecessary

Blackwell Publishing Ltd.

Since 1987 federal sentencing guidelines have constrained the sentencing discretion of federal judges in an effort to create nationwide sentencing uniformity. In 2003, despite many judges' complaints that the existing guidelines already prevented them from imposing appropriate sentences, Congress adopted the "Feeney Amendment" which made it even harder for judges to impose lighter sentences.

A recent study by Dr. Max Schanzenbach publishing in the latest issue of Journal of Empirical Legal Studies examines the underlying claims of the amendment's Congressional supporters: that judges were being increasingly lenient and that sentencing disparities had increased. Dr. Schanzenbach uses data on all federal cases tried between 1993 and 2001 (inclusive), ultimately finding that "the empirical arguments offered by supporters of the Feeney Amendment were deeply flawed."

Downward departures, i.e. decreased sentences, did increase over the 1990s, but not to the extent claimed by the supporters according to the study. During this time period Dr. Schanzenbach found that the influence of sentencing factors set by the guidelines remained roughly unchanged, e.g. the amount of prison time sentenced corresponded to the regulations. Additionally, it was determined that the increasing number of Democrats on the bench also could not explain the small increase in downward departures. Overall, the study finds that the new constraints imposed by the Feeney Amendment were not necessary to keep prison sentences between offenders similar, as federal sentencing practices did not change appreciably over the relevant time period. Dr. Schanzenbach explains, "Despite the arguments put forth by some members of Congress... there is no evidence that sentencing disparities have increased."

In light of the U.S. v. Booker, which struck down portions of the sentencing guidelines, Congress is likely to revisit sentencing practices in the near future and may well be tempted again to reduce the ability of judges to depart from statutory and guideline minimums. This study suggests a return to a more flexible sentencing regime may not greatly affect sentencing practices, while allowing judges the discretion to depart in unusual cases in the interest of justice.


This study is published in the current issue of Journal of Empirical Legal Studies. Media wishing to receive a PDF of this article please contact

The Journal of Empirical Legal Studies (JELS) is a peer-edited, peer-refereed, interdisciplinary journal that publishes high-quality, empirically-oriented articles of interest to scholars in a diverse range of law and law-related fields, including civil justice, corporate law, criminal justice, domestic relations, economics, finance, health care, political science, psychology, public policy, securities regulation, and sociology.

Max Schanzenbach is an Assistant Professor of Law at the Northwestern University School of Law. He has clerked for a federal appellate judge, working on several appeals involving the sentencing guidelines. He received his JD from Yale Law School and his PhD in Economics from Yale.

Dr. Schanzenbach is available for questions and interviews.

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