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September 20, 2005

Invigorating the sentencing process after Booker

At the terrific event entitled "What To Do After Booker and Blakely" that I participated in earlier this month (details here), federal public defender Alan DuBois presented terrific ideas about how the sentencing process could be improved in the wake of Booker.  His presentation was based on a draft paper he has authored with Anne Blanchard, which I can now make available for downloading. 

This paper, which will appear in a future issue of the Federal Sentencing Reporter, is entitled "The Due Process Approach to Sentencing Justice: How Courts Can Use Their Discretion To Make Sentencings More Accurate and Trustworthy."  Here are some early passages from a paper that is a must-read for everyone thinking through procedural issues in the wake of Booker.

The Supreme Court's opinion in United States v. Booker, 125 S. Ct. 738 (2005) has freed courts not only from the substantive mandates of the United States Sentencing Guidelines — the compulsory enhancements, binding sentencing ranges, etc. — but from its procedural dictates as well. Courts now enjoy the discretion to impose stronger procedural protections at sentencing than the minimal standards dictated by the Guidelines. After Booker, procedurally speaking, what is not forbidden is allowed. This paper discusses some of the procedural reforms defendants should be urging courts to adopt in order to improve the accuracy and reliability of fact-finding at this most critical stage of the criminal process, the sentencing hearing....

While the Booker remedy was perhaps not all that defendants might hope for, by freeing courts from mandatory adherence to the Guidelines, it does provide courts with greater leeway to experiment with new procedures and standards in order to improve the accuracy, reliability and fairness of the sentencing process.  Early returns suggest that courts are taking up this challenge.

Download sentencing_due_process.rtf

September 20, 2005 at 09:31 AM | Permalink

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