Sentencing Lessons

By Weisberg, Robert; Miller, Marc L. | Stanford Law Review, October 2005 | Go to article overview
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Sentencing Lessons


Weisberg, Robert, Miller, Marc L., Stanford Law Review


INTRODUCTION
I. MODESTY
   A. Multiple Purposes
   B. Institutional Realism
   C. Our Federal System
       * Note on states as the source of lessons
II. SIMPLICITY
III. RESPECT
     A. A Commission
     B. Judges
         1. The risks of global judicial repairs
         2. The role of sentencing judges
         3. Appellate judges and sentencing review
     C. Lawyers
IV. TRANSPARENCY
     * Note on transparency and mandatory sentences
CONCLUSION

INTRODUCTION

In 1984 the Sentencing Reform Act (SRA) was adopted after years of proposed legislation and hearings in both houses. (1) The SRA established Congress as a national leader in modern sentencing reform--one of the great criminal justice reform movements of the past century. At a time when both liberals and conservatives believed the classic American indeterminate sentencing model had failed, Congress constructively undertook, and, after a long and dogged effort, made great progress in meeting, the challenge of developing a new model of more principled sentencing.

Such a statement of praise will, of course, sound surprising to many criminal justice leaders, since the years have not been kind to the Federal Sentencing Guidelines. They have been the subject of sustained criticism from judges, lawyers, scholars, and members of Congress, and a wide consensus has emerged that the Federal Guidelines have in many ways failed. But some historical perspective reminds us that the new system created by the SRA was a dramatic step toward achieving the goals that both liberals and conservatives continue to invoke: proportionality between crime and sanction, a reasonable balance between uniformity and individualization, due process protections and appellate review, attention to the informed wisdom of sentencing experts, and balanced allocation of power and responsibility among the branches and agencies of government.

Two decades later we are much wiser about the nature and operation of sentencing guidelines systems than we could have been in 1984, especially now that about half of the states have themselves developed modern sentencing systems. (2) And from that historical perspective, we can see the dramatic decisions in Blakely v. Washington (3) and Booker v. United States (4) neither as damaging blows to the system nor even as confirmations of egregious flaws in the system. Rather, they are stages in an inevitable fit-and-start evolution of the system, and they offer a rare opportunity for reassessing and recommitting to the good principles and bipartisan spirit that shaped the SRA. Congress can learn from years of experience and commentary on the Federal Guidelines system and from guidelines systems in many states that have been much more successful.

Blakely and Booker have required legal changes and induced new reflection and reform in sentencing for many states. But the nature of the structured systems in most states has eased the burden of adjusting these systems to the new constitutional mandates. (5) By contrast, the challenge to the Federal Guidelines system is far more foundational and one that the judiciary probably cannot meet by itself. Of course, if we see Blakely as the shock to the federal system, then Booker itself is the Supreme Court's remedy for that shock. But the judiciary as a whole has far less power and discretion to shape the best remedies, and the most thoughtful response to the continuing problems and critiques will require, at some point, the remedial hand of Congress itself.

While Congress has regularly modified the Federal Guidelines system in small ways, it has not before faced an occasion for systematic review. As Congress turned its attention to a legislative response to Booker, the editors of the Stanford Law Review recognized the value of assembling the insights of the nation's leading scholars in the field of sentencing into a current, synthetic statement about the state of sentencing knowledge after twenty-five years of federal and state guidelines reforms.

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