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May 4, 2005

Revised draft of Pondering Modern Sentencing Process

As detailed in this post, the kind folks at the Journal of Criminal Law & Criminology asked me to write a Foreword for the journal's Supreme Court Review Issue.  I now am able to share the latest proof of the article (downloadable below). Entitled "Beyond Blakely and Booker: Pondering Modern Sentencing Process," this article is something of a companion piece to my "Reconceptualizing Sentencing" article slated for publication in the next issue of the University of Chicago Legal Forum (which is available at this post). 

As noted before, this JCL&C article explores the constitutional implications of Blakely and Booker for sentencing procedures beyond the Sixth Amendment jury trial right.  Because I have reproduced the article's intro in this prior post, here I thought I might share a few paragraphs from the final Part of the article (which pick up some themes from this recent post about sentencing burdens of proof):

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 sentencing procedures serve the goal of sentencing uniformity.  But, with Justice Ginsburg in Booker having allied herself with both of these competing factions, the schizophrenic Booker ruling further obscures which principles should guide lower courts when considering the many procedural issues beyond jury trial rights that follow in the wake of Booker.

Yet the fate and future of sentencing procedures — particularly concerning critical issues such as notice to parties and burdens of proofs — may depend greatly on the outcome of this conceptual battle.  Consider, as but one possible example, the issue of burden of proof: A heightened concern for defendants' procedural rights at sentencing suggests a heightened burden of proof for facts which lead to longer sentences, but a concern for sentencing uniformity might support continued application of the preponderance standard of proof.

Download final_pondering_process_proofs.doc

May 4, 2005 at 07:57 PM | Permalink

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