Beyond Blakely and Booker: Pondering Process (in draft)

The fine folks at the Journal of Criminal Law & Criminology have now given me permission to post a draft of the Foreword I have completed for the journal's Supreme Court Review Issue.  The article, which can be downloaded below, is entitled "Beyond Blakely and Booker: Pondering Modern Sentencing Process." 

This article is sort of a companion piece to my "Reconceptualizing Sentencing" article slated for publication in the next issue of the University of Chicago Legal Forum (which is available at this post).  Both articles stresses the conceptual significance of the move away from the rehabilitative model of sentencing, but this article stresses that Blakely and Booker have broad constitutional implications for sentencing procedures beyond just the jury trial right.  (Indeed, though written before the appearance of H.R. 1528, the drug sentencing bill which includes the Booker fix provisions (basics here, commentary here and linked here), some ideas in this piece buttress points made by Frank Bowman (available here) and Jim Felman (available here) about constitutional problems with this proposed response to Booker.)

Here is the introduction to "Beyond Blakely and Booker: Pondering Modern Sentencing Process":

The Supreme Court's landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment's right to a jury trial.  But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment.  The future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in the unexplored shadows of the Supreme Court's decisions in Blakely and Booker.

In this foreword, I explain why an important enduring question which emerges from the Supreme Court's recent sentencing jurisprudence concerns whether, when and how procedural issues other than the Sixth Amendment's jury trial right will be addressed after Blakely and Booker.  In Part I, I provide a brief account of modern sentencing reform and its neglect of an array of procedural issues.  Part II focuses upon the Supreme Court's past and present jurisprudential struggles with procedural rights at sentencing.  Part III concludes by briefly sketching some considerations for courts and other key sentencing actors and institutions as they explore what process is due in modern sentencing systems.

Download beyond_blakely_and_booker_pondering_process_page_proof.doc