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April 7, 2007

Should departures depart after Booker?

I am very proud to recommend a terrific new Note on SSRN authored by an OSU student, Lee Heckman.  The piece, available here [new fixed link], is entitled "The Benefits of Departure Obsolescence: Achieving the Purposes of Sentencing in the Post-Booker World."  Here is the abstract:

Since the Supreme Court decided United States v. Booker, much scholarly debate has focused on what weight the Sentencing Guidelines should be given by district courts in sentencing and appellate courts reviewing those sentences.  But this focus does not advance what should be the central issue in all sentencing decisions: whether the purposes of sentencing are being fulfilled by the sentence imposed.  The Booker opinion should be seen not only as creating a system of advisory Guidelines, but also as an attempt to refocus the sentencing inquiry on 18 U.S.C. Section 3553(a).  Nowhere is this more relevant than in the case of a defendant seeking a reduced sentence.  Prior to Booker, this was limited to narrowly defined departures from the applicable Guideline Sentencing Range. But because pre-Booker departure decisions were largely devoid of Section 3553(a) analysis--and in the case of departures based on discouraged factors, were only based on the extraordinariness of the defendant's situation--many departures were purposeless. Therefore, pre-Booker departure precedent should largely be discarded.  Thus far, only the Seventh Circuit (and the Ninth Circuit to a lesser degree) has declared departures obsolete.  Departure obsolescence, however, should be recognized by all courts and should be replaced with a jurisprudence that reduces sentences based on Section 3553(a)'s purposes of sentencing.

As Larry Solum might say, "Download it while its hot!"

April 7, 2007 at 10:08 AM | Permalink


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Maybe it is just a glitch with my computer, but there doesn't seem to actually be a document for download on SSRN, just the abstract. The paper sounds interesting, and so I hope Mr. Heckman decides to post the document itself.

Posted by: cbh | Apr 9, 2007 10:54:44 AM

There was a problem with the document upload and I frantically tried to fix it over the weekend. After time on the phone with SSRN today, the Note seems to now be uploaded, but will only become visible (and downloadable) to the public after the obligatory
"day or two" of SSRN's "review of the document.

Posted by: Lee Heckman | Apr 9, 2007 3:20:16 PM

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