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Proposals To Give Judges More Sentencing Discretion Attracting Bipartisan Support

Publication Date: 
August 12, 2013
Daily Journal
Hadley Robinson

Professor Robert Weisberg spoke with Hadley Robinson of the Daily Journal about the recent proposals to give judges more discretion when sentencing criminal offenders and explained why this is a matter of political will and political rhetoric.

Proposals to give judges more discretion when sentencing criminal offenders are suddenly coming from every direction.

In a rare show of bipartisanship, two separate bills have been introduced this year to allow judges to depart from mandatory minimum sentences for certain non-violent offenders involved with drugs, pornography or firearms. A bill set for a hearing in September, the Safety Valve Act of 2013, decries the absolutist approach that requires offenders, no matter what, to minimum prison terms.

In July, a group of 50 former U.S. attorneys, judges and other high-level law enforcement officials from both parties, including several from California, urged Congress to pass the bill.


"Politicians used to think of criminal justice as a kind of theological imperative that could not be subject to a cost-benefit analysis," said Stanford Law School professor Robert Weisberg. "Now we see many libertarian conservatives saying law enforcement are government programs; they therefore fall under the general principle that we distrust government programs and want to subject all government programs to rigorous cost-benefit analysis."


Weisberg compares the current push to President Richard Nixon's successful diplomatic endeavors in Communist China in the 1970s, which he said no Democratic president could have pursued because he would have been accused of weakness.

"The analogy here is conservative Republican governors could reduce sentences because they were immune from the charge they were soft on crime," Weisberg said. "It's only a matter of political will and political rhetoric, and right now that's the direction we're moving in."