In this foreword, I explain why an important enduring question which emerges from the Supreme Court’s recent sentencing jurisprudence concerns whether, when and how procedural issues other than the Sixth Amendment’s jury trial right will be addressed after Blakely and Booker. In Part I, I provide a brief account of modern sentencing reform and its neglect of an array of procedural issues. Part II focuses upon the Supreme Court’s past and present jurisprudential struggles with procedural rights at sentencing. Part III sketches considerations for courts and other key sentencing actors and institutions as they explore what process is due in modern sentencing systems.

Part III concludes by suggesting that the pitched battle over the rights and results in Blakely and Booker reflect competing visions of what procedural concepts and norms will take center-stage as the Supreme Court considers the applicable constitutional rules for modern sentencing decision-making. Justice Stevens leads a faction of the Court concerned about safeguarding procedural rights for defendants at sentencing, while Justice Breyer leads a faction of the Court concerned about ensuring that applicable procedures at sentencing serve the goal of sentencing uniformity. But, with Justice Ginsburg having allied herself with both of these competing factions in Booker, the schizophrenic Booker ruling further obscures which principles should guide lower courts in considering the broad range of procedural issues beyond jury trial rights that follow in the wake of Blakely and Booker.

Since the Caballes case did very little in the way of defining binary searches and discussing the appropriate limitations (if any) on their use, the Article seeks provide some guidance to courts in evaluating the constitutionality of binary searches in the future. The Article begins by discussing the history of the binary search doctrine, focusing on its application to drug-detection dogs, which up until now have been the most common form of binary search in use. The Article then analyzes the Caballes decision itself, examining what it does and does not resolve about the constitutionality of binary searches. Finally, the Article attempt to resolve the important unanswered questions in Caballes: first, how accurate does a surveillance technique have to be in order to be considered a binary search, and second, how does the Fourth Amendment prohibition against unreasonable seizures limit or prevent the widespread use of binary searches?

This article focuses on the Administration’s failure to protect Iraqi cultural property as one clear example of the Administration’s disregard for its obligations. The article discusses cultural property and the long, continuous development of legal principles, through treaties and rules of customary international law for the protection of cultural property in wartime—developments in which the United States has played a leading role. On the eve of the Iraq invasion, no US leader could have been in doubt about the legal requirements to stop looting and protect cultural property. Yet, we find little evidence of any preparation to do so. The article analyzes the literature on Iraqi war planning to understand why this lapse occurred. It further analyzes the consequences of this failures, including: the possibility that individuals will be held accountable; the high cost to the US associated with the war, and Iraq’s right to claim reparations, including in-kind reparations from US holdings of Iraqi cultural property.

But extreme concerns about Blakely are the result, in my view, of a failure to appreciate the decision’s core principle, as well as from the Supreme Court’s failure to articulate the proper limits of that principle. I see a fundamental — and fundamentally sound — principle at work in Blakely, and I believe the Blakely rule, once properly conceptualized and defined, is neither radical nor necessarily destructive to the project and goals of modern sentencing reforms.

The fundamental and sound principle at work in the Blakely line of cases, as well as the principle’s proper limit, centers on an essential offense/offender distinction. The Constitution frames the jury trial right in terms of “crimes,” which are the basis for a “prosecution” of “the accused.” This language connotes that the jury trial right attaches to all offense conduct for which the state seeks to impose criminal punishment, but the language also connotes that the jury trial right does not attach to any offender characteristics which the state may deem relevant to criminal punishment. That is, all facts and only those facts relating to offense conduct which the law makes the basis for criminal punishment are subject to the jury trial right; such facts are in effect the essential parts of those “crimes” which the state wishes to be able to allege against “the accused” in a “criminal prosecution.”