Title

Have We Come Full Circle? Judicial Sentencing Discretion Restored in Booker and Fanfan

Comments

Final version forthcoming in Volume 33 Issue 3 of the Pepperdine Law Review.

Abstract

The much anticipated Supreme Court decision in United States v. Booker and Fanfan has both invalidated the mandatory nature of the federal Sentencing Guidelines as well as restored judicial discretion for federal judges. With the Booker decision there is a renewed opportunity to correct some of the imbalance that came about as a result of the mandatory guidelines and the sentencing policies of the past twenty years. Booker has implications for all future sentencing as the power between the judiciary and the jury has been realigned and the power of the government has been reduced. Sentencing cannot accomplish legitimate goals when it is absolutely uniform nationwide regardless of any justifiable distinctions between defendants or crimes. Based on this principle, the goals of the United States Sentencing Commission were to eliminate unwarranted departures and to advance the goals of uniformity and proportionality. Warranted departures are those factors that should be taken into account when sentencing. In drafting the Guidelines, the Commission sought to establish a system that maintained fairness and avoided rote application in sentencing practices.

Instead, the Guidelines that became effective in 1987 produced a mandatory, rote sentencing process that omitted any judicial discretion and promoted a much-criticized shift in power from the judiciary to the prosecution. Judges resented the fact that their sentencing discretion had evaporated as sentences became harsher and the prison population in this country has swelled to unprecedented numbers. Booker will promote sentencing that is likely to be closer to the original goals of the Sentencing Reform Act which contemplated that sentences would reflect fairness and certainty, two of the hallmarks of due process. With the Booker decision, the Court has opened the way to promote alternative sentencing methods and to allow the judiciary to consider all relevant matters when sentencing. Lower courts will use the “reasonableness” standard to achieve the goals and policies of sentencing: retribution, deterrence, incapacitation, and rehabilitation. In doing so, courts will now be able to consider all relevant factors concerning a defendant and the offense, restored discretion in sentencing.

Disciplines

Criminal Law | Criminal Procedure

Date of this Version

April 2005

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