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Dead Law Walking: The Surprising Tenacity Of The Federal Sentencing Guidelines, Frank O. Bowman Iii
Dead Law Walking: The Surprising Tenacity Of The Federal Sentencing Guidelines, Frank O. Bowman Iii
Faculty Publications
This Article takes a statistical look at the state of federal sentencing roughly a decade after United States v. Booker, 543 U.S. 220 (2005), in which the U.S. Supreme Court declared the Federal Sentencing Guidelines constitutionally dead, and in its next breath resurrected them in advisory form. The Booker transformation has engendered endless procedural wrangles and has unquestionably altered thousands of individual sentencing outcomes. Yet, from the points of view of federal defendants in the mass and of the system that processes them from arrest to prison gate, perhaps the most surprising fact about Booker is how small an effect …
Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii
Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii
Faculty Publications
This is an introductory essay to Volume 23, Number 2, of the FEDERAL SENTENCING REPORTER, which considers the state of American criminal justice policy in 2010, two years after the "Change" election of 2008. Part I of the essay paints a statistical picture of trends in federal criminal practice and sentencing over the last half-decade or so, with particular emphasis on sentence severity and the degree of regional and inter-judge sentencing disparity. The statistics suggest that the expectation that the 2005 Booker decision would produce a substantial increase in the exercise of judicial sentencing discretion and a progressive abandonment of …
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended, Frank O. Bowman Iii
Debacle: How The Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended, Frank O. Bowman Iii
Faculty Publications
This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continued in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the …