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April 3, 2009

Deep thoughts about post-Booker sentencing and sources of law

Professor Mark Osler, whose tendency toward deep and provocative sentencing thoughts are exemplified by his recent book"Jesus on Death Row: The Trial of Jesus and American Capital Punishment," has a fascinating new article now available here via SSRN.  The piece is titled "Seeking Justice Below the Guidelines: Sentencing as an Expression of Natural Law," and here is the abstract:

Even though there are strong personal incentives against it, federal judges abandon the sentencing guidelines in about one-third of all cases.  Shockingly, when they sentence outside of the range, 96% of the time the sentence is below the range rather than above.  Looking to both traditional descriptions of natural law and the use of natural law within American history, the author argues that this tendency can be seen as a natural law impulse, and one that ultimately will undermine limitations on sentencing discretion in the form of guidelines.

April 3, 2009 at 10:31 AM | Permalink


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I would just like to comment to say that this was, personally, the favorite research assignment Professor Osler gave me during my independent study with him. Although I personally am the exact philosophical opposite of a natural lawyer, given the background assumption of the truth of natural law, I believe his argument to be totally persuasive. All natural lawyers should understand that the pursuit of justice through mercy rather than stricture is the only philosophy consonant with such an analysis of the law.

(As an aside, I am a former student of Prof. Osler's who is now an assistant district attorney whose practice will focus mainly on appeals.)

Posted by: Lane Haygood | Apr 4, 2009 12:01:36 AM

Ending capital punishment immunizes all subsequent murders.

There is no lawyer mercy for the 5 million victims of violent crime, each year. Why not? No lawyer fees from victims. Not Natural Law. Rent Seeking.

Isn't the most reliable guide to the Natural Law the New Testament? Isn't that prohibited in our secular nation?

Posted by: Supremacy Claus | Apr 4, 2009 12:19:35 AM

While 96% to 4% is a serious disparity, and while I certainly hope that mercy is a major factor for judges (not to mention that the statute itself seems to require erring on the side of mercy by requiring a sentence "sufficient, but not greater than necessary"), I think some of the disparity also results from the fact that guidelines ranges, and our criminal punishment schemes in general, are often extraordinarily harsh.

Posted by: Anon | Apr 4, 2009 1:13:39 PM

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