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December 26, 2005

More great holiday sentencing reading

My sentencing reading list for the holiday break has included the Latest FSR issue on Blakely in the States and the great recent law review articles on the death penalty.  And now I see on SSRN that Michael M. O'Hear, who has been writing up a storm latety, has two interesting looking pieces to add to this reading list:

1.  The Duty to Avoid Disparity: Implementing 18 U.S.C. § 3553(a)(6) After Booker (due to appear in the McGeorge Law Review):

Abstract: Since passage of the Sentence Reform Act of 1984 ("SRA"), 18 U.S.C. § 3553(a)(6) has required sentencing judges in federal court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." At the same time, the SRA also required judges to adhere in most cases to the Federal Sentencing Guidelines, leaving (a)(6) with little independent significance. In January 2005, however, the Supreme Court ruled in United States v. Booker that the Guidelines could no longer be treated as mandatory.  Since then, numerous sentencing judges have invoked (a)(6) in a variety of different circumstances to justify non-Guidelines sentences.  This Article surveys the cases, examines the origins and purposes of (a)(6), and proposes a new analytical framework for judges to use when implementing the provision. Under this approach, (a)(6) would require that a sentencing judge consider the average actual sentence imposed in past cases involving a similar offense of conviction, and expressly justify any deviation from this empirical norm.

2.  Is Restorative Justice Compatible With Sentencing Uniformity? (due to appear in the Marquette Law Review):

Abstract: Restorative justice (RJ) procedures offer an alternative to conventional criminal justice procedures. RJ emphasizes dialogue between criminal offenders and their victims, consensual conflict resolution, and the repairing of harm.  RJ skeptics, however, frequently argue that RJ procedures undermine uniformity in sentencing.  This Article considers the merits of these claims, concluding that RJ is compatible with some versions of uniformity, but not with others.  While uniformity, as a sentencing ideal, has many supporters, uniformity means quite different things to different people.  In particular, the Article contrasts "static" and "dynamic" versions of uniformity.  The static approaches rely on sentencing factors that are external and antecedent to the processes of the criminal justice system.  The dynamic approaches, by contrast, permit consideration of the interactions between offenders, victims, and criminal justice professionals within the system.  The Article demonstrates that the dynamic paradigms are more compatible with RJ than the static.  The Article also suggests some reasons to view the static paradigms (which pose relatively greater difficulties for RJ) with skepticism.

December 26, 2005 at 08:23 AM | Permalink


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