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April 30, 2016

"Why Vague Sentencing Guidelines Violate the Due Process Clause"

The title of this post is the title of this new article by Kelsey Heilman now available via SSRN. Here is the abstract:

The United States Sentencing Guidelines are the mandatory starting point and the lodestone for the sentences of 75,000 federal defendants each year.  Though advisory after the 2005 Supreme Court decision in United States v. Booker, the Guidelines continue to exert tremendous influence over federal sentencing practice.  Last term, in Johnson v. United States, the Supreme Court struck down as unconstitutionally vague a sentencing provision of the Armed Career Criminals Act.  In the ensuing year, a circuit split developed regarding whether that decision dooms a textually identical provision of the Guidelines, with some courts holding advisory sentencing guidelines are completely immune from due process challenges.  In this Article, I argue the Guidelines violate the Due Process Clause of the United States Constitution if they are so vague they deny fair notice to defendants and invite arbitrary enforcement by judges.

April 30, 2016 at 06:19 PM | Permalink


Doug, excellent article and very helpful for several cases I am working on. Friday I filed a Motion to Prohibit Death Penalty based on a vagueness argument when the only aggravating factor is "Killing was especially heinous atrocious and cruel" When there is only one ag subjecting a def to death, that fact is an element of a new crime, triggering a due process notice concern.

I'm also working on a vagueness challenge to Trafficking in opiate pills, when the weight of the Tylenol filler is factored in. Possession of five pills can result in huge mandatory sentences.

Several of your articles are referenced in the piece, as well as two articles by my former Constitutional Law prof at UVa, Peter Low.


Posted by: bruce cunningham | May 1, 2016 12:35:00 PM

Great to see a larger, more thorough article on this topic! Just recently, I published a brief article in Bloomberg Criminal Law Reporter surveying the landscape on this very issue. Here is a link to my piece: http://www.bna.com/sentencing-aftermath-johnson-n57982070097/

Kelsey's piece is really well done!

Posted by: Neal Modi | May 1, 2016 3:46:28 PM


Posted by: Savannah | May 2, 2016 4:54:52 PM

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