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White-Collar Plea Bargaining And Sentencing After Booker, Stephanos Bibas
White-Collar Plea Bargaining And Sentencing After Booker, Stephanos Bibas
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This symposium essay speculates about how Booker's loosening of the Federal Sentencing Guidelines is likely to affect white-collar plea bargaining and sentencing. Prosecutors' punishment intuitions and the strong white-collar defense bar will keep white-collar sentencing from growing as harsh as drug sentencing, but the parallels are nonetheless ominous. The essay suggests that the Sentencing Commission revise its loss-computation rules, calibrate white-collar sentences to their core purpose of expressing condemnation, and adding shaming punishments and apologies to give moderate prison sentences more bite.
Originalism And Formalism In Criminal Procedure: The Triumph Of Justice Scalia, The Unlikely Friend Of Criminal Defendants?, Stephanos Bibas
Originalism And Formalism In Criminal Procedure: The Triumph Of Justice Scalia, The Unlikely Friend Of Criminal Defendants?, Stephanos Bibas
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In Crawford v. Washington, Justice Scalia's majority opinion reinterpreted the Confrontation Clause to exclude otherwise reliable testimonial hearsay unless the defendant has been able to cross-examine it. In Blakely v. Washington, Justice Scalia's majority opinion required that juries, not judges, find beyond a reasonable doubt all facts that trigger sentences above ordinary sentencing-guidelines ranges. Crawford and Blakely are prime case studies in the strengths, weaknesses, and influence of originalism and formalism in criminal procedure. Crawford succeeded because it cleared away muddled case law, laid a strong foundation in the historical record, and erected a simple, solid, workable rule. …