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August 12, 2008

New article looking at post-Booker sentencing appeals

Though I have just barely begun my post-vacation catch-up reading, this new piece appearing on SSRN is going to the top of the reading pile.  The piece by Carissa Byrne Hessick and F. Andrew Hessick III, which covers one of my favorite (and one of the most important) post-Booker issues of debate, is titled simply "Appellate Review of Sentencing Decisions."  Here is the abstract:

In Booker v. United States, the Supreme Court granted district courts broad discretion in imposing sentences in an effort to create a sentencing scheme complying with the Sixth Amendment.  At the same time, however, to achieve the sentencing uniformity intended by Congress, the Court authorized circuit courts to review sentences for reasonableness.  These two objectives — requiring district courts discretion and cabining that discretion through reasonableness review — are in tension with each other.  This Article argues that, in an effort to satisfy these conflicting goals, the Court has in subsequent cases sacrificed the central functions of appellate review, error correction and law making.  It has undermined the error correction function by permitting appellate courts to presume that within-Guidelines sentences are reasonable, and it has impaired the lawmaking function by directing appellate courts to defer to district courts' sentencing policy determinations. Moreover, the Court's failure to describe how to balance these two conflicting objectives, or even to acknowledge the conflict, has resulted in confusion in the circuit courts.

August 12, 2008 at 10:08 AM | Permalink

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Comments

Maybe it's a problem with my work computer or something, but I can't get that paper to download from SSRN.

Posted by: Help | Aug 12, 2008 2:45:32 PM

Help, SSRN is downright infuriating to use if you don't want to create an account. I can't get the anonymous download link to work.

I don't understand what their MO is over there, but they clearly have goals other than ensuring wider access to new scholarship.

Posted by: | Aug 12, 2008 5:42:48 PM

Fair warning to Rookie Kagan: if you refuse to carry CJ Roberts' (legal) pads, karma will land you with an injury that prevents you from writing any opinions for at least six weeks..

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Fair warning to Rookie Kagan: if you refuse to carry CJ Roberts' (legal) pads, karma will land you with an injury that prevents you from writing any opinions for at least six weeks..

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