Professor Berman posted this morning at Sentencing Law & Policy about D.Iowa Judge Mark Bennett’s article “A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges.” The SSRN link to the article is here.

The two CA3 judges referenced in the title are Judges Fisher and Hardiman. From the intro (cites omitted):

[Bennett’s article] responds
to law review articles by two Third Circuit judges that suggest that
federal sentencing judges should be concerned about Congress’s next
move as we sentence defendants. Judge Fisher refers to this as a
“legislative backlash.” Judge Hardiman warns that “Congress
might impose new, detailed statutory penalties that will leave
district [court] judges with even less discretion than they possessed
in the mandatory Guidelines era.” While I have heard these
refrains before, I find them both odd and at odds with fundamental
notions of separation of powers and federal sentencing judges’
overarching command to impose a sentence that is “sufficient, but
not greater than necessary, to comply with the purposes” of federal
sentencing.

Looks interesting.