Important reading as we prepare for a new sentencing era

For me, my working time at this conference concluded with a great informal Blakely chat this morning with nearly two dozen colleagues.  I learned a lot from the dialogue and got excited (yet again) for the possibility we may see Booker and Fanfan as early as this coming week. 

Helpfully, just in time as we gear up for the opinion, Villanova Professor (and FSR editor) Steve Chanenson has finalized a terrific article fittingly entitled "The Next Era of Sentencing Reform."  The full article can be downloaded below and here is a portion of the abstract:

This article charts a path for criminal sentencing in the wake of the Supreme Court's recent bombshell decision in Blakely v. Washington.  Blakely has thrust sentencing systems across the country into turmoil.  But Justice O'Connor was fundamentally wrong when, in her Blakely dissent, she exclaimed that "Over 20 years of sentencing reform are all but lost." All is most assuredly not lost. Blakely, properly viewed, is an opportunity - albeit a disruptive one - to re-think and improve our sentencing systems....

The Supreme Court will soon decide whether [Blakely] applies to the Federal Sentencing Guidelines. Regardless of what the Court chooses to do, Congress and the state legislatures are re-evaluating their sentencing systems and looking for Blakely-compliant options.

This article does not seek to shape the Court's opinion, or to predict its decision. Instead, it charts a path for legislatures, sentencing commissions, and sentencing scholars. In this article, I set the groundwork for understanding fundamental elements of sentencing, and show the pieces moved by Blakely. I then examine several popular systemic responses to Blakely. Ultimately, I find their various strengths outweighed by their substantial weaknesses.

In the final section, I propose a new approach that would not only survive Blakely's constitutional commands but can lead us into the next era of sentencing reform. This proposal is not merely a Blakely "fix," but a proposal that retains fidelity to the concerns and principles that led, over the past 30 years, to the modern sentencing reform revolution, and to structured sentencing systems. I propose a system of Indeterminate Structured Sentencing ("ISS"). ISS is an indeterminate sentencing system (that is, a system that includes parole release authority) in which a Super Commission guides both the sentencing and release functions. An ISS system honors judicial discretion but acknowledges the value of structural checks and balances. It permits high sentences in cases where a judge believes them appropriate while limiting the pressure to increase sentences across the board. ISS offers a balanced approach to sentencing that satisfies Blakely while simultaneously being sensible, just, and grounded in sentencing history, theory and practice.

Download chanenson_next_era_of_sentencing_reform_012005.doc

And, after you have read this terrific article, if you still need more to feed your Blakely fix, I am happy to help.  Actually, my research assistant deserves the credit for having completed another easy-to-print Word version (with embedded links and a TOC) of the text of this blog covering the last six weeks' posts in 2004.  This document can be downloaded below, and prior installments of Word versions of the blog, organized by date, can be found here and here and here. 

Download sentencing_blog_nov_15_through_dec_31.doc