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September 7, 2005

More academic thoughts on the offense/offender distinction

Last year, in the wake of the Blakely decision, Professor Robert Weisberg organized a fantastic symposium at Stanford Law School entitled "The Future of American Sentencing: A National Roundtable on Blakely."  (Background on the Stanford event can be found here and here, and highlights here.)   As a follow up, Bob and Professor Marc Miller had the great idea of encouraging participants to author short pieces on specific subject matters in an effort to map out the intellectual history and best practices of modern sentencing reforms.  These pieces are to be published in a special issue of the Stanford Law Review due out in October.

My contribution to this effort, which covers with a greater policy focus some of the offense/offender ideas I first developed in my Conceptualizing Blakely article, is now polished enough for sharing.  My article, which goes by the less-than-scintillating title of "A More Perfect System: Distinguishing Offense Conduct and Offender Characteristics," can be downloaded below.  Here are selections from the introduction and conclusion:

The universe of sentencing considerations can be divided between offense conduct and offender characteristics. Historically, offense conduct (e.g., harms to victims, whether a weapon was used, the amount of money stolen or drugs trafficked) and offender characteristics (e.g., an offender's prior criminal history, employment record, family circumstances) have both played a significant role in sentencing decision-making, and both types of considerations remain central in modern sentencing systems. But the distinctive import and impact of offense conduct and offender characteristics at sentencing have not often been carefully and systematically examined.

This Article explores, both historically and normatively, the consideration of offense conduct and offender characteristics at sentencing. Part I outlines the shifts in sentencing theory and offense/offender focus, and Part II analyzes the Supreme Court's recent sentencing jurisprudence. These Parts spotlight numerous important and illuminating connections between the offense/offender distinction and sentencing theory, constitutional jurisprudence, and modern sentencing reforms.  They also highlight that federal sentencing reforms, when examined with a particular focus on offense/offender issues, exhibit some disconcerting attributes. Part III offers a few basic recommendations that would enable the federal sentencing system to strike a sounder balance, as have many state sentencing systems, in the consideration of offense conduct and offender characteristics at sentencing.

Many federal district judges have started to use the new discretion they possess in the wake of the Supreme Court's decision in Booker to consider and give effect to offender characteristics at sentencing. Congress and the U.S. Sentencing Commission should give particular attention to those offender characteristics (such as age and family circumstances) that are now being most frequently discussed by sentencing courts after Booker. As a result of the unique remedy developed by the Supreme Court in Booker, federal sentencing judges, guided by the sentencing mandates of section 3553(a) of the Sentencing Reform Act, are now able to develop a "common law of sentencing" through their fact-specific, case-by-case consideration of federal sentencing policy and practices. In keeping with both the original spirit and goals of the Sentencing Reform Act, Congress and the Sentencing Commission should seek to integrate the common-law wisdom being developed in the courts into all future federal sentencing reforms.

UPDATE:  The final proof of the piece is now available: Download berman_conduct_and_characteristics_58_stan. L. Rev. 277.pdf

September 7, 2005 at 05:35 PM | Permalink


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