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February 3, 2005

So this is what a common law of sentencing looks like

In this post the day after Booker, I suggested that Justice Breyer's remedy ultimately sets up a remarkable experiment in advisory guideline sentencing and creates the possibility of developing a (long-desired) purpose-driven "common law of sentencing."  In just three weeks time, I have been amazed by the dynamic nature of this common law process. 

Judge Cassell's latest Wilson opinion (basics here) is just the latest example of the amazing public judicial dialogue that Booker has engendered.  In a thorough opinion, Judge Cassell in Wilson II effectively explains why he considers his post-Booker sentencing approach sounder than Judge Adelman's approach in Ranum (basics here), and along the way Judge Cassell usefully develops a new nomenclature ("variance") and makes important observations about the consideration of offender circumstances within the guidelines.  (And yet I think Judge Adelman and others could retort that Judge Cassell's heavy deference to the Commission's guidelines does not fully jibe with the language and structure of 3553(a) and various parts of Booker, and that his approach is not sufficiently attentive to the reality that system-wide actors are not institutionally well positioned to effectively address offender circumstances and other inherently case-specific matters.)

Wherever one comes down on the merits, the judicial fireworks have been amazing to watch.  Consider that, in addition to all the opinions assembled here from the last two weeks, this week has already now also brought us:

February 3, 2005 at 02:53 AM | Permalink


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