"The Federal Sentencing Guidelines: Some Valedictory Reflections Twenty Years After Apprendi"

The title of this post is the title of this notable new paper authored by Frank O. Bowman III now available via SSRN. Here is its abstract:

In this contribution to the North Carolina Law Review's symposium on the twentieth anniversary of the Supreme Court's decision in Apprendi v. New Jersey, I offer a valedictory reflection on my own intellectual journey with sentencing reform and in particular with the Federal Sentencing Guidelines.

The account begins with my first encounters with the Guidelines when I was a zealous Assistant U.S Attorney, continues through my transition to teacher, scholar, policy advocate, and occasional sentencing consultant, and foreshadows a conclusion with me in the role of disillusioned curmudgeon muttering about might-have-beens as I shuffle towards my dotage.

The utility, if any, of these musings will lie partly in the fact that I have been up to my neck in Guidelines minutia for thirty years, but mostly in the fact that I have felt obliged to change my mind as events and experience challenged my previous convictions.  Some reconstruction of the evolution of my thinking as the Guidelines arose, failed, and died, but then achieved an enduring afterlife as law that is not really law at all, may be of modest use when the time finally comes to build something truly new.