Seeking Justice Below the Guidelines: Sentencing as an Expression of Natural Law

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.

Keywords: sentencing, criminal law, philosophy, natural law, higher law

JEL Classification: K14, K41, K42