Sentencing Lessons

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

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Sentencing Lessons
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.