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September 23, 2008

"Explaining Sentences"

The title of this post is the title of this terrific new paper by Michael O'Hear available via SSRN. Here is the abstract:

Despite the Supreme Court's 2005 decision in United States v. Booker, which enhanced the power of district court judges to sentence defendants below the range prescribed by the federal sentencing guidelines, the great majority of federal sentences continue to follow the guidelines' recommendations.  As defendants have challenged these practices, one commonly litigated issue has been the question of whether district court judges are obligated to explain themselves when they reject a defendant's argument for a below-guidelines sentence.  In the immediate aftermath of Booker, a handful of federal circuits adopted such an explanation requirement.  Since 2005, however, the tide has turned, and the initial pro-explanation holdings have been undermined by later decisions.  Against this backdrop, the present Article provides the first systematic account of the rise and fall of the explanation requirement for federal sentences, attributing the fall to the courts' framing of the issue as a generic judicial process question.  The courts have not recognized important justifications for the explanation requirement that are specific to the federal sentencing context.  For instance, the requirement likely helps to diminish the effect of subtle cognitive biases that result in district court judges giving too much weight to the federal sentencing guidelines relative to other statutory and constitutional considerations.  Additionally, the requirement is supported by research on the psychological effects of procedural justice, which suggests that defendants who are treated fairly at sentencing will have more respect for law and legal authorities than defendants who are treated unfairly.  In light of these and other sentencing-specific concerns, the Article concludes with a call for reconsideration of the recent decisions that have sapped the explanation requirement of its vitality.

September 23, 2008 at 08:18 PM | Permalink


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I disagree with Professor O'Hear, and in fact have already blogged about this issue in a discussion of US. V Levinson.


When I have a chance, I will post a direct response to this article on that blog.

Posted by: Daniel | Sep 23, 2008 9:33:32 PM

As I read the opinion another judge found prosecutorial misconduct on two occasions - including the *th Circuit..but I guess you blame Bennett for that...why not address the merits of the opinion..I suppose you have it in for Professor Starr, too. Let's address the merits ..seems like a "targeted remedy" and thoughtful remedy. Let's have some good give and take on the merits of Professor Starr's article and this opinion.

Posted by: Jason G | Sep 24, 2008 1:31:27 PM

hee hee - academics crack me up. With the possible exception of a defendant who received probation or a suspended sentence, I challenge you to show me a defendant with a prison sentence who believes they've been "fairly" or appropriately sentenced.

Posted by: | Sep 24, 2008 7:50:24 PM

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