Last December, in Gall v. United States, the Supreme Court gave lower courts a bit more discretion to depart from federal sentencing guidelines if the circumstances warrant it. The case itself involved a judge who let a convicted ecstasy dealer off lightly with probation, rather than the recommended 30 months in jail, because the deal had occurred a long time ago, and the man had cleaned up since then. SCOTUS backed the judge, and the whole thing sounded like a good, liberal outcome. At least if you think sentencing has gotten waaaaay out of hand.

Lately, though, Doug Berman's been piling up evidence that, in the post-Gall world, many judges may depart from the guidelines by handing out higher sentences. That doesn't seem too surprising: Academics may agree that federal sentencing guidelines are absurdly high, but a great number of judges don't think so (most federal judges, after all, are Republicans). Indeed, some reformers originally backed the 1980s guidelines in order to rein in excessively punitive judges (although the guidelines themselves turned out to be extremely harsh, too). Odds are, given more leeway, judges will be somewhat more lenient on crack defendants, who get an especially raw deal, but tougher on many others.

Basically, the only way we're ever going to get lower sentences (and fix our over-swollen prisons) is if Congress steps in. Speaking of which, here's an interesting story. Jeff Sessions of Alabama is one of those former "tough on crime" Republicans who's supposedly seen the light on America's prison crisis, and went so far as to co-sponsor the Second Chance Act, a modest but relatively liberal bill giving grants to states to fund prisoner re-entry programs. But now that the legislation's all ready for passage—heck, even Bush supports it—Sessions is putting a hold on it. What gives?

Sessions' stated reason—that he's worried about funding duplicate programs in a few cases—seems flimsy. One theory: he's worried about re-election this fall, and Alabama voters don't like this soft-on-crime business. A more, er, cynical theory: Republicans are planning to attack Obama for being a squishy liberal on crime should he get the nomination, and don't want to give him cover by passing this bill. Of course, maybe I'm just a paranoid nutter, and Sessions will lift his hold tomorrow. Also, as Jeralyn Merritt's round-up shows, Obama's not actually that squishy on criminal-justice issues, though he's probably about as liberal as one could hope any mainstream Democrat to be on this front.