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Making Sentencing Sensible, Douglas A. Berman, Stephanos Bibas
Making Sentencing Sensible, Douglas A. Berman, Stephanos Bibas
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This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law. Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice. The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs. A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury. Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge …