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July 7, 2006

YLJ Pocket Part review of appellate review after Booker

The Yale Law Journal's terrific companion website, called The Pocket Part, has devoted its July issue to a discussion of appellate review of federal sentences after Booker.  Here is the introductory set-up for four commentaries on this great topic:

Justice Breyer's remedial opinion in United States v. Booker not only rendered the Federal Sentencing Guidelines advisory but also called on appellate judges to ensure that sentences are not "unreasonable."  Eighteen months after Booker, the appellate courts are still grappling with how to determine whether a sentence is reasonable or not.  This month, four authors — Judge Nancy Gertner, Professors Doug Berman and Steve Chanenson, and Yale Law Journal Editor Eric Citron — offer their perspectives on the definition and practical meaning of appellate review of sentencing.

My contribution to The Pocket Part, which is entitled "Reasoning Through Reasonableness" and can be accessed here, provides a distinct iteration of some points developed in my recent "Conceptualizing Booker" article.  And I highly encourage a close read of the other reasonable perspectives on reasonableness review appearing in the Pocket-worthy contributions by Judge Nancy Gertner, Professor Steve Chanenson, and YLJ Editor Eric Citron.

July 7, 2006 at 09:55 AM | Permalink


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All four of these commentaries are excellent. All make reference to the seemingly contradictory nature of the State’s sentencing objectives and the difficulty this causes when formulating a sentence and trying to explain why it is reasonable. This was the big dilemma faced by the U.S. Sentencing Commission and caused them to adopt their matrix system that hybridizes the sentencing process. Hybrid sentences mix apples and oranges, often creating a mess and obfuscating the process. Of course, obfuscation is comfortable when decisions are hard to make and controversial. At best, hybrid sentences can only approximate the precision of linier decision-making.

This is not what Congress intended originally as we can see from Section 3553(a), which seems to have contemplated the use of a framework for making linier judgments, each of which can be described clearly. Of course there must be a way to integrate the various combinations of correctional judgments. A framework like this would start by unpacking the provocations that are embodied in a problem like robbery. There are three. First the perpetrator committed a crime, which is determinate. Second the perpetrator’s crime was an offense, which is also determinate. Third, the perpetrator is a criminal offender, which is indeterminate. The first two are premises in a provocation argument; the last is its conclusion. Each of these provocations triggers one or more linier responses, or correctional judgments, each of which includes an appraisal of the provocation and decision about the deprivations that will contribute to accomplishing the State’s objectives. These deprivations may include restraints, requirements and takings. A separate deprivation status, or module would be created in response to each provocation. That module that contains the most restrictive restraint would control at any given point in time. The others containing less restrictive deprivations can be nested within it. A sentence is a declaration; it creates the deprivation component in an individualized correctional plan for each perpetrator. Program providers are responsible for completing this plan by adding the other components that are needed to accomplish all of the State’s objectives, and then executing it.

Posted by: | Jul 7, 2006 6:51:51 PM

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