My love letter to Booker?

Perhaps as a fitting follow-up to my Valentine week sentencing wish list, today I am able to post what might be viewed as my own personal love letter to Booker.  I now have a complete first draft of an article entitled "Conceptualizing Booker," which is due to appear in the Arizona State Law Journal following this great conference.  The draft article, which can be downloaded below (and is still rough in many spots), tries to bring conceptual order of both parts of the Booker opinion.  Here is a overview from the introduction:

As explained in Part I of this Article, Booker comes into sharper conceptual focus when located within broader stories about sentencing reform and constitutional jurisprudence.  Indeed, reflecting on sentencing history and recent reforms reveals a simple idea that helps unlock the conceptual mystery presented by Booker.  This idea is that sentencing is a distinct enterprise in the criminal justice system — and thus should permit a distinct constitutional structure — only if and when sentencing decision-makers are exercising reasoned judgment.

Building on this foundation, Part II of this Article will explain how the two parts of the Booker opinion can be conceptually harmonized around the idea that broad judicial power at sentencing can be justified if and only when judges are exercising reasoned judgment.  In other words, Part II will explain that Booker's conceptual core — what we might call the tao of Booker — is best understood not in term of vindicating the role of juries and the meaning of the Sixth Amendment's jury trial right, but rather in terms of vindicating the role of judges and the meaning of sentencing as a distinct criminal justice enterprise defined and defensible in terms of the exercise of reasoned judgment.

Part III of this article will then briefly explore some implications of this conceptual vision of Booker.  As explained in this Part, conceptualizing Booker as a decision vindicating the role of judges exercising reasoned judgment at sentencing has important implications for the Supreme Court's still developing Sixth Amendment jurisprudence and also for how lower courts should approach federal guideline sentencing in the wake of Booker.

Download early_draft_of_conceptualizing_booker_214.doc