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Criminal Law

Faculty Publications

Blakely

Articles 1 - 8 of 8

Full-Text Articles in Law

Dead Law Walking: The Surprising Tenacity Of The Federal Sentencing Guidelines, Frank O. Bowman Iii Jan 2014

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 …


Nothing Is Not Enough: Fix The Absurd Post-Booker Federal Sentencing System, Frank O. Bowman Iii Jan 2012

Nothing Is Not Enough: Fix The Absurd Post-Booker Federal Sentencing System, Frank O. Bowman Iii

Faculty Publications

This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.


Debacle: How The Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended, Frank O. Bowman Iii Jan 2010

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 …


The Year Of Jubilee Or Maybe Not: Some Preliminary Observations About The Operation Of The Federal Sentencing System After Booker, Frank O. Bowman Iii Jan 2006

The Year Of Jubilee Or Maybe Not: Some Preliminary Observations About The Operation Of The Federal Sentencing System After Booker, Frank O. Bowman Iii

Faculty Publications

This segment of the project contains the offense seriousness portion of the simplified sentencing table employed in the Model Sentencing Guidelines. The Article also contains drafter's commentary explaining the offense seriousness scale of the table, how it interacts with other portions of the Model Guidelines, and the policy choices behind the simplified table.


Mr. Madison Meets A Time Machine: The Political Science Of Federal Sentencing Reform, Frank O. Bowman Iii Oct 2005

Mr. Madison Meets A Time Machine: The Political Science Of Federal Sentencing Reform, Frank O. Bowman Iii

Faculty Publications

This is the third in a series of articles analyzing the current turmoil in federal criminal sentencing and offering suggestions for improvements in the federal sentencing system. The first article, "The Failure of the Federal Sentencing Guidelines: A Structural Analysis," 105 COLUMBIA L. REV. 1315 (2005), analyzed the structural failures of the complex federal sentencing guidelines system, particularly those arising from imbalances among the primary institutional sentencing actors - Congress, the judiciary, the Justice Department, and the U.S. Sentencing Commission. The second, "Beyond BandAids: A Proposal for Reconfiguring Federal Sentencing After Booker," 2005 U. OF CHICAGO LEGAL FORUM 149 (2005), …


The Failure Of The Federal Sentencing System: A Structural Analysis, Frank O. Bowman Iii Apr 2005

The Failure Of The Federal Sentencing System: A Structural Analysis, Frank O. Bowman Iii

Faculty Publications

For most of the last decade, I numbered myself among the supporters of the Federal Sentencing Guidelines and wrote extensively in their defense, while chronicling their defects. In the past year, I have reluctantly concluded that the federal sentencing guidelines system has failed. This Article explains the Guidelines' failure. The Sentencing Reform Act was intended to distribute the power to make sentencing policy and rules and to control individual sentencing outcomes among a range of national and local actors - the U.S. Sentencing Commission, Congress, the federal appellate courts, and the Department of Justice at the national level, and district …


Beyond Bandaids: A Proposal For Reconfiguring Federal Sentencing After Booker, Frank O. Bowman Iii Jan 2005

Beyond Bandaids: A Proposal For Reconfiguring Federal Sentencing After Booker, Frank O. Bowman Iii

Faculty Publications

This Article proposes a simplified sentencing table consisting of nine base sentencing ranges, each subdivided into three sub-ranges. The base sentencing range would be determined by combining offense facts found by a jury or admitted in a plea with the defendant's criminal history. A defendant's placement in the sub-ranges would be determined by post-conviction judicial findings of sentencing factors. No upward departures from the base sentencing range would be permissible, but defendants might be sentenced below the low end of the base sentencing range as a result of an acceptance of responsibility credit or due to a downward departure motion. …


'The Question Is Which Is To Be Master - That's All': Cunningham, Claiborne, Rita And The Sixth Amendment Muddle, Frank O. Bowman Iii Jan 2001

'The Question Is Which Is To Be Master - That's All': Cunningham, Claiborne, Rita And The Sixth Amendment Muddle, Frank O. Bowman Iii

Faculty Publications

Three things are clear from the Supreme Court's opinion in Cunningham v. California, in which the Court struck down California's sentencing law as violative of the Sixth Amendment, and from the briefs in the pending cases involving post-Booker federal sentencing, Claiborne v. United States and Rita v. United States. First, the Supreme Court has plunged Sixth Amendment sentencing law deep down the rabbit hole. Second, both the government and petitioners in Claiborne and Rita have adopted indefensible positions. Third, neither the parties nor the amici in Rita and Claiborne have offered the Court any real help in crafting a sensible …