Reconceptualizing sentencing (in draft)

As noted in this post, I had the honor giving the Keynote Address at The University of Chicago Legal Forum's 19th Annual Symposium this past November.  The agenda and details of the event, entitled "Punishment and Crime," can still be found here.

In conjunction with that event, I have completed a draft of an article titled "Reconceptualizing Sentencing," which is slated for publication in the next issue of the University of Chicago Legal Forum.  Though I had initially planned to write a short article making a few points, I fear my draft is now a long article making a few-too-many-points. 

The fine folks at the Legal Forum have now given me permission to post my full draft of "Reconceptualizing Sentencing." It is available for downloading below, and here is the opening:

The transformation of the sentencing enterprise throughout the United States over the past three decades has been remarkable.  The field of sentencing, once rightly accused of being "lawless," is now replete with law.  Legislatures and sentencing commissions have replaced the discretionary indeterminate sentencing systems that had been dominant for nearly a century with an array of structured or guideline systems to govern sentencing decisionmaking.  These modern sentencing developments constitute one of the most dynamic and important law reform stories in recent American legal history — a veritable sentencing revolution.

And yet the modern sentencing era has been marked by a failure to reconceptualize modern sentencing.  The new sentencing laws, the Supreme Court's sentencing jurisprudence, and even the scholarly literature in the field, are all conceptually underdeveloped.  The basic story of the sentencing revolution, especially in the federal system, has been frequently recounted, but the theories, structures and procedures of modern sentencing decisionmaking have not been deeply examined. 

Against this backdrop, it is not all that surprising that the Supreme Court's blockbuster rulings in Blakely v. Washington and United States v. Booker have generated puzzled reactions and some impassioned criticisms, even though the decisions reflect certain fundamentally sound conceptual principles.  The drama that has surrounded the Blakely and Booker decisions — and their aftermath — ultimately reflects a collective failure to reconceptualize sentencing in the wake of the sentencing revolution.  It also makes more urgent the task of reconceptualizing modern sentencing.

Download reconceptualizing_sentencing_draft_for_clf_32405.doc