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Abstract:
Professors Berman and Nathan debate the legal, political, and practical context in which the Supreme Court will decide Baze v. Rees, a constitutional challenge to Kentucky's three-drug lethal injection protocol.

death penalty, Baze, lethal injection, execution, Supreme Court

Abstract:
At the heart of the debate over law blogs as legal scholarship are bigger and more important (and perhaps scarier) questions about legal scholarship and the activities of law professors. First, the blog-as-scholarship debate raises fundamental questions about what exactly legal scholarship is and why legal scholarship should be considered an essential part of a law professor's vocation. And the key follow-up question is whether blogging should be part of that vocation. In this paper, I set out a few initial observations about the evolution and value of legal scholarship, and then share some thoughts on the power, possibilities, and pitfalls of law professors blogging to explain why I hope blogging will become an accepted part of a law professor's vocation.

Abstract:
This coursebook provides materials for a 3-unit course or seminar on sentencing law. In a criminal justice system where more than 90% of cases are resolved through plea bargains, sentencing law becomes the primary legal arena for the daily work of the practicing criminal lawyer. The field of sentencing also provides a case study in the dynamics of law reform, and wrestles with profound and ancient themes of justice and the nature of law: what makes rules and procedures wise, which institutions should design and implement these rules, how much discretion the rules should (or must) allow in each case, and what impact the law will have on human lives.

The book surveys common elements that operate in several different sentencing systems: the federal sentencing guidelines, state guideline systems, discretionary indeterminate sentencing, and capital sentencing. The organization of the book covers the institutions and basic design choices for sentencing systems (Chapters 1-3), the inputs that determine sentences for individual cases (Chapters 4-5), the outputs of the system, including the racial and gender patterns found in sentences (Chapters 7-9), and the procedural contexts for sentencing decisions (Chapters 6, 10, and 11).

Principal materials come from many sources, reflecting the many institutions that shape and apply sentencing law. The examples from structured guideline jurisdictions - the dominant modern sentencing reform - occupy the center of attention. Because the federal system is well-developed and closely critiqued, the book devotes steady attention to that system, but also samples from many state systems. The capital materials generate revealing comparisons with non-capital sentencing practices.

Criminal sentencing, criminal procedure, criminal justice, law and society

Abstract:
The Supreme Court's landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment's right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. And the future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in the unexplored shadows of the Supreme Court's decisions in Blakely and Booker.

In this foreword, I explain why an important enduring question which emerges from the Supreme Court's recent sentencing jurisprudence concerns whether, when and how procedural issues other than the Sixth Amendment's jury trial right will be addressed after Blakely and Booker. In Part I, I provide a brief account of modern sentencing reform and its neglect of an array of procedural issues. Part II focuses upon the Supreme Court's past and present jurisprudential struggles with procedural rights at sentencing. Part III sketches considerations for courts and other key sentencing actors and institutions as they explore what process is due in modern sentencing systems.

Part III concludes by suggesting that the pitched battle over the rights and results in Blakely and Booker reflect competing visions of what procedural concepts and norms will take center-stage as the Supreme Court considers the applicable constitutional rules for modern sentencing decision-making. Justice Stevens leads a faction of the Court concerned about safeguarding procedural rights for defendants at sentencing, while Justice Breyer leads a faction of the Court concerned about ensuring that applicable procedures at sentencing serve the goal of sentencing uniformity. But, with Justice Ginsburg having allied herself with both of these competing factions in Booker, the schizophrenic Booker ruling further obscures which principles should guide lower courts in considering the broad range of procedural issues beyond jury trial rights that follow in the wake of Blakely and Booker.

Apprendi, Booker, Fanfan, Blakely, sentence, due process

Abstract:
The Supreme Court, in Kennedy v. Louisiana, is about to decide whether the Eighth Amendment forbids capital punishment for child rape. Commentators are aghast, viewing this as a vengeful recrudescence of emotion clouding sober, rational criminal justice policy. To their minds, emotion is distracting. To ours, however, emotion is central to understand the death penalty. Descriptively, emotions help to explain many features of our death-penalty jurisprudence. Normatively, emotions are central to why we punish, and denying or squelching them risks prompting vigilantism and other unhealthy outlets for this normal human reaction. The emotional case for the death penalty for child rape may be even stronger than for adult murders, contrary to what newspaper editorials are suggesting. Finally, we suggest ways in which death-penalty abolitionists can stop pooh-poohing emotions' role and instead fight the death penalty on emotional terrain, particularly by harnessing the language of mercy and human fallibility.

death penalty, capital punishment, emotions, Kennedy v. Louisiana, Eighth Amendment, child rape, innocence, wrongful conviction, exoneration, deterrence, justice, mercy

Abstract:
The Supreme Court's decision in United States v. Booker appears to be a two-headed monster and a conceptual monstrosity. In Booker, dual 5-4 majorities issued dueling opinions in which the Supreme Court first held that the operation of the federal guidelines as mandatory sentencing rules violated the Sixth Amendment jury trial right, but then crafted a remedy that rendered the guidelines advisory and thus greatly enhanced the sentencing power of judges. Read independently, each majority opinion in Booker seems conceptually muddled; read together, the two Booker rulings seem almost conceptually nonsensical.

Yet, viewed from a functional perspective, the Booker decision makes more conceptual sense than it may at first appear. Though a deeply fractured Supreme Court has not been able to work together to forge a clear sentencing jurisprudence, some sound sentencing concepts can be identified within both majority opinions in Booker. Booker comes into sharper conceptual focus when located within broader stories about sentencing reform and constitutional jurisprudence. Reflecting on sentencing history and recent reforms, this article suggests a simple idea that helps unlock the conceptual mystery presented by Booker: sentencing is a distinct enterprise in the criminal justice system - and thus should permit a distinct constitutional structure - if and only when sentencing decision-makers are exercising reasoned judgment.

Building on this concept, this Article explains how the two parts of the Booker opinion can be conceptually harmonized around the idea that broad judicial power at sentencing can be justified if and only when judges are exercising reasoned judgment. In other words, Booker's conceptual core - what we might call the Tao of Booker - is best understood not in terms of vindicating the role of juries and the meaning of the Sixth Amendment's jury trial right, but rather in terms of vindicating the role of judges and the meaning of sentencing as a distinct criminal justice enterprise defined and defensible in terms of the exercise of reasoned judgment. Conceptualizing Booker as a decision vindicating the role of judges exercising reasoned judgment at sentencing has important implications for the Supreme Court's still developing Sixth Amendment jurisprudence and for how lower courts should approach federal guideline sentencing after Booker.

sentence, Apprendi, Fanfan, rehabilitation, Blakely

Abstract:
The universe of sentencing considerations can be divided between offense conduct and offender characteristics. Historically, offense conduct (e.g., harms to victims, whether a weapon was used, the amount of money stolen or drugs trafficked) and offender characteristics (e.g., an offender's prior criminal history, employment record, family circumstances) have both played a significant role in sentencing decision-making, and both types of considerations remain central in modern sentencing systems. But the distinctive import and impact of offense conduct and offender characteristics at sentencing have not often been carefully and systematically examined.

This Article, which is part of a special issue of the Stanford Law Review reflecting on 25 years of modern sentencing reforms, explores, both historically and normatively, the consideration of offense conduct and offender characteristics at sentencing. Part I outlines the shifts in sentencing theory and offense/offender focus, and Part II analyzes the Supreme Court's recent sentencing jurisprudence. These Parts spotlight numerous important and illuminating connections between the offense/offender distinction and sentencing theory, constitutional jurisprudence, and modern sentencing reforms. They also highlight that federal sentencing reforms, when examined with a particular focus on offense/offender issues, exhibit some disconcerting attributes. Part III offers a few basic recommendations that would enable the federal sentencing system to strike a sounder balance, as have many state sentencing systems, in the consideration of offense conduct and offender characteristics at sentencing.

Many federal district judges have started to use the new discretion they possess in the wake of the Supreme Court's decision in Booker to consider and give effect to offender characteristics at sentencing. Congress and the U.S. Sentencing Commission should give particular attention to those offender characteristics (such as age and family circumstances) that are now being most frequently discussed by sentencing courts after Booker. As a result of the unique remedy developed by the Supreme Court in Booker, federal sentencing judges, guided by the sentencing mandates of section 3553(a) of the Sentencing Reform Act, are now able to develop a "common law of sentencing" through their fact-specific, case-by-case consideration of federal sentencing policy and practices. In keeping with both the original spirit and goals of the Sentencing Reform Act, Congress and the Sentencing Commission should seek to integrate the common-law wisdom being developed in the courts into all future federal sentencing reforms.

Blakely, Fanfan, Apprendi

Abstract:
If writing on a blank slate, few would likely advocate the precise sentencing system resulting from the Supreme Court's decision in Booker. Nevertheless, in this Article, I contend that policymakers should consider playing the peculiar Booker hand that the Court has dealt for federal sentencing. Especially because any significant alteration of the structure of federal sentencing remains legally treacherous and fraught with uncertainty, Congress and the U.S. Sentencing Commission should focus their efforts and energies on improving the advisory guideline system that Booker has produced. I suggest that, though the sentencing scheme created by Booker is far from perfect, a program of modulated incremental changes is likely to provide the soundest course for the post-Booker development of the federal sentencing system.

sentence, penal, imprisonment

Abstract:
The transformation of the sentencing enterprise throughout the United States over the past three decades has been remarkable. The field of sentencing, once rightly accused of being "lawless," is now replete with law. Legislatures and sentencing commissions have replaced the discretionary indeterminate sentencing systems that had been dominant for nearly a century with an array of structured or guideline systems to govern sentencing decision-making. These modern sentencing developments constitute one of the most dynamic and important law reform stories in recent American legal history - a veritable sentencing revolution.

And yet the modern sentencing era has been marked by a failure to reconceptualize modern sentencing. The new sentencing laws, the Supreme Court's sentencing jurisprudence, and even the scholarly literature in the field, are all conceptually underdeveloped. The basic story of the sentencing revolution, especially in the federal system, has been frequently recounted, but the theories, structures and procedures of modern sentencing decision-making have not been deeply examined.

Against this backdrop, it is not all that surprising that the Supreme Court's blockbuster rulings in Blakely v. Washington and United States v. Booker have generated puzzled reactions and some impassioned criticisms, even though the decisions reflect certain fundamentally sound conceptual principles. The drama that has surrounded the Blakely and Booker decisions - and their aftermath - ultimately reflects a collective failure to reconceptualize sentencing in the wake of the sentencing revolution. It also makes more urgent the task of reconceptualizing modern sentencing.

This Article reviews the modern revolution of sentencing laws to spotlight that the U.S. Supreme Court's recent work in Blakely and Booker is just the latest dramatic chapter in a lengthy, dynamic, and conceptually confused story about evolving sentencing rules and practices. The Article suggests that a chief lesson to be drawn from Blakely and Booker, and the dramas that have surrounded these decisions, is that policymakers, courts, and academics are long overdue to take up the task of reconceptualizing modern sentencing. The article suggests a few key sentencing concepts which could help begin the overall - and overdue - project of broadly reconceptualizing modern sentencing reforms.

Abstract:
Federal judges have struggled mightily to comprehend the meaning and impact of the Supreme Court's landmark sentencing decision in United States v. Booker. In Rita v. United States, the Justices provided only limited additional Booker guidance having issued four opinions that raise more questions than they answered. The opinions in Rita revealed not only that the Court is still struggling with its Sixth Amendment jurisprudence, but also that the Justices have divergent views on the many other dynamic issues raised by the Booker remedy of an advisory guideline system.

As detailed in this article, the Booker remedy transformed a constitutional debate into a multi-dimensional cacophony of sentencing issues that Rita could only begin to address. Moreover, though Rita does answer a few key post-Booker questions, the opinions in Rita have passages that present new puzzles for anyone trying to sort through the post-Booker world of federal sentencing. Further, Rita and lower courts' early reactions to the decision ultimately reveal, yet again, that dramatic legal changes face resistance from sentencing actors who become acclimated to the status quo. Indeed, the history of modern federal sentencing reforms demonstrates that changes in legal doctrines become revolutionary only when they ultimately transform the legal cultures in which these doctrines operate. This lesson should be heeded not only by the Supreme Court as it considers another set of sentencing cases, but also by all would-be legal reformers in the field of sentencing and beyond.

Fanfan, Sixth Amendment, Kimbrough, Gall, Sentencing Guidelines

Abstract:
The Supreme Court's decision to consider in Hill v. McDonough a death row defendant's challenge to Florida's lethal injection protocol resulted in widespread legal confusion and the disruption of executions nationwide. The Court's subsequent ruling in Hill raised more legal questions than it answered and ensured that death row defendants would continue to disrupt scheduled executions by pursuing litigation over lethal injections protocols.

But, though harmful to the orderly administration of capital punishment, the Supreme Court's work in Hill has its virtues. The Court's consideration of Clarence Hill's claims brought greater (and long needed) scrutiny to the particulars of lethal injection protocols. And the narrow ruling in Hill presents a valuable opportunity for other institutions to grapple more fully with the difficult issues raised by any method of state killing.

Consequently, Hill might be lauded for reflecting Professor Alexander Bickel's wise insight that the Supreme Court ought sometimes seek to avoid resolution of certain constitutional claims. But, for the Hill decision to produce a kind of Bickel gold, legislators and executive officials must take up the Supreme Court's invitation to start doing a better job regulating how the state kills.

judicial restraint, cruel and unusual punishment

Abstract:
This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law. Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice. The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs. A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury. Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge to exercise reasoned judgment. Juries should find offense facts, but judges may find offender facts and also exercise judgment at sentencing. Within these bounds, the Court should preserve states' flexibility to experiment with different roles for juries, judges, legislatures, sentencing commissions, probation and parole officers, and trial and appellate courts. In particular, while certain types of mandatory guidelines are constitutionally problematic, voluntary or even presumptive guidelines should be permissible so long as judges do not usurp the traditional role of juries and appellate courts meaningfully review sentencing judges' reasons for imposing sentences within and outside ranges. This modest approach, which preserves room for experimentation, fits best with legal-process values and is least likely to provoke evasion.

Criminal Law and Procedure, Sentencing, Guidelines, Experimentation

Abstract:
The Sixth Amendment guarantees the right of a criminal defendant to have the assistance of counsel, and much has been said and written about the fundamental need, and the frequent failure, to ensure adequate counsel for all persons accused of crimes. However, far too little attention has been paid to the role and impact of defense counsel in the ultimate conclusion of the criminal process - sentencing. Especially since the enactment of the Federal Sentencing Guidelines, considerable scholarly attention has been given to the roles at sentencing of judges, prosecutors, and even probation officers. But still lacking in the legal literature has been assessments of defense counsel's effect on sentencing outcomes or explorations of whether differences in the quality of defense representation may be thwarting the goals of sentencing reform. This Article starts the project of closely examining the impact of defense counsel on sentencing outcomes.

Part I notes the lack of attention given to defense counsel's role and impact in sentencing, and explains the importance of exploring the effect differences in defense counsel may have on sentencing outcomes. Part II utilizes the Federal Sentencing Guidelines as a focal point for discussing the array of challenges that modern sentencing schemes create for defense counsel. This Part highlights how the sheer bulk of sentencing law created by the Guidelines heightens the importance of sophisticated legal knowledge and skilled advocacy, while also increasing the risk of mistakes throughout the processes of plea bargaining, sentence calculations, and final sentence determinations. To best represent clients, defense lawyers have to tailor effectively their negotiations, mitigation arguments, and even repackage work relationships into the Guidelines context. As revealed throughout Part II, prosecutors, probation officers, and judges have many official and unofficial opportunities to make discretionary decisions that directly impact federal sentencing outcomes, and these decisions can be greatly influenced by the efforts of defense counsel at every stage of the federal sentencing process. As a result, from the very beginning of representation in a Guidelines world, the caliber and performance of defense counsel can have a dramatic impact on both the broad outline and detailed particulars of the ultimate sentencing outcome. These important insights in turn suggests that poor defense representation or differences in the quality of defense counsel may create considerable risks of disparities and other unfair sentencing outcomes under the Guidelines.

Part III maps out the challenges for sentencing reformers in trying to fully assess and remedy these concerns by noting the complex realities that will necessarily attend efforts to measure and minimize the potential for differences in defense counsel to impact federal sentencing outcomes. The article urges researchers, and in particular the U.S. Sentencing Commission, to undertake empirical studies in order to try to gauge the impact of defense counsel on the sentencing process. In sketching out an agenda for future research and potential reforms, this Article closes with a call to action for all policy-makers and academics concerned with sentencing systems to focus needed attention on defense counsel's role and impact on sentencing outcomes.

Abstract:
This short comment responds to Susan Bandes' assertion that putting emotions "at the center of the debate about [capital punishment's] fate" will lead the death penalty to "die a well-deserved death." On the contrary, reengaging with emotion will reinvigorate capital punishment. Capital emotions are more nuanced than Bandes suggests in distinguishing which killers are so evil that they deserve the ultimate penalty. She prefers the warm-and-fuzzy emotion of empathy, but offers little justification for squelching the visceral capital emotions. Perhaps Vulcan criminal justice would not need to vent outrage at the worst killers, but human criminal justice must and inevitably will.

criminal justice, criminal procedure, capital punishment, death penalty, emotion, capital emotions

Abstract:
In a lecture at the University of Chicago, U.S. Supreme Court Associate Justice Stephen Breyer highlighted that he has two jobs: the first job, he explained, is deciding what to decide, and the second job is then to decide what the Court has decided to decided. Many devote careers to analyzing and criticizing exactly how Supreme Court Justices perform their second job of deciding the cases the Court has decided to decide; far less attention has been devoted to analyzing and criticizing exactly how Supreme Court Justices perform their first job of deciding what to decide.

This commentary directs attention (and criticism) toward the Justices' performance in their first job of deciding what to decide in the arena of criminal justice. This commentary contends the Supreme Court has recently done a poor job setting its own agenda and its failings have had a negative impact on state and federal legal systems. Specifically, the Supreme Court has become caught up in a "culture of death": the Court devotes extraordinarily too much of its scarce time and energy to reviewing death penalty cases and adjudicating the claims of death row defendants. As the title of the commentary is intended to suggest, this phenomenon a "capital waste" that results in various problems for the administration of both capital and non-capital sentencing systems.

Beyond criticizing the Supreme Court's troublesome affinity for obsessing over capital cases, this commentary explores under-examined agenda-setting dynamics that shape the Court's engagement with legal issues and its work-product. In addition, as a final coda suggests, changes in Court personnel might prove to be as consequential with regard to how the Court sets its docket as with regard to how the Court resolves cases.

docket, Marsh, Baze, Rees, Kyles

Abstract:
The Supreme Court's decision in Blakely v. Washington has generated impassioned judicial and academic criticisms, perhaps because the "earthquake" ruling seems to announce a destructive rule in search of a sound principle. Read broadly, the jury trial rule articulated in Blakely might be thought to cast constitutional doubt on any and all judicial fact-finding at sentencing. Yet judicial fact-finding at sentencing has a long history, and such fact-finding has been an integral component of modern sentencing reforms and seems critical to the operation of guideline sentencing. The caustic reaction to Blakely reflects the fact that the decision has sowed confusion about constitutionally permissible sentencing procedures - and risks impeding the continued development of sound sentencing reforms - without stating a clear principle to justify the disruption it has caused.

But extreme concerns about Blakely are the result, in my view, of a failure to appreciate the decision's core principle, as well as from the Supreme Court's failure to articulate the proper limits of that principle. I see a fundamental - and fundamentally sound - principle at work in Blakely, and I believe the Blakely rule, once properly conceptualized and defined, is neither radical nor necessarily destructive to the project and goals of modern sentencing reforms.

The fundamental and sound principle at work in the Blakely line of cases, as well as the principle's proper limit, centers on an essential offense/offender distinction. The Constitution frames the jury trial right in terms of "crimes," which are the basis for a "prosecution" of "the accused." This language connotes that the jury trial right attaches to all offense conduct for which the state seeks to impose criminal punishment, but the language also connotes that the jury trial right does not attach to any offender characteristics which the state may deem relevant to criminal punishment. That is, all facts and only those facts relating to offense conduct which the law makes the basis for criminal punishment are subject to the jury trial right; such facts are in effect the essential parts of those "crimes" which the state wishes to be able to allege against "the accused" in a "criminal prosecution."

sentencing, guidelines, criminal law, Seventh Amendment

Abstract:
Soon after the Supreme Court in Blakely v. Washington declared certain judicial fact-finding within a state sentencing guideline system unconstitutional, Justice O'Connor described the Court's decision as a "Number 10 earthquake." But two years after the Blakely ruling, the case's broader impact and meaning for state criminal justice systems around the country has been largely overshadowed by developments in the federal sentencing system. Nevertheless, this is an exciting time for state sentencing. By granting review in yet another state sentencing case, California v. Cunningham, this past spring, the Supreme Court brings state issues to the national stage once more.

State courts handle many more criminal cases than the federal courts. State sentencing procedures touch the lives of many more defendants, victims and witnesses than the federal sentencing system. Yet, these realities often get lost in all the attention paid to the federal sentencing system in the era of the United States Sentencing Guidelines, perhaps because the federal system is in everyone's backyard whether that backyard is in Manhattan or Montana. Especially in the academic world, there is seemingly endless interest in federal sentencing law and practices, but precious little discussion of state sentencing reforms generally or of developments in particular states.

The direct and indirect impact of Apprendi and especially Blakely in the states is a rich and dynamic story, with many facets and lessons that should not be overlooked. The doctrinal uncertainty and confusion produced by Blakely and Booker makes it dangerously easy for jurisdictions to be concerned primarily with technical problems in particular sentencing laws rather than with broader reform issues. But the Supreme Court's coming work in Cunningham, like Blakely before it, should motivate state legislatures, courts, and sentencing commissions to reexamine and improve their sentencing systems.

In this Commentary - which serves as the introduction to a broader symposium on state sentencing after Blakely - we argue in favor of robust state sentencing commissions as part of that reexamination and improvement. Creating and empowering a sentencing commission closes few, if any, substantive options for state sentencing systems. The resulting sentences urged by a sentencing commission can be comparatively high and tightly controlled by a central authority. In contrast, sentences can also be set relatively low and sentencing decisions can be left comparatively unencumbered by binding guidance. A pro-commission view is a process-oriented recommendation with few, if any, inherent substantive sentencing consequences. It does, however, encourage much-needed rationality and transparency in sentencing.

sentencing, criminal sentencing, Blakley, Booker, Cunningham, state sentencing, sentencing commissions, state sentencing commissions

Abstract:
The shock waves created by the Feeney Amendment have reverberated not only through the press, but also through all the institutions and groups involved with federal sentencing. The legal, political, and practical impact of the Feeney Amendment is far-reaching. Volume 16, issue 2 of the Federal Sentencing Reporter takes stock of the Feeney Amendment's many facets and starts examining the varied ways in which the Amendment has reshaped the federal sentencing landscape. This article serves as an overview of the discussion and considers the Feeney Amendment's effects on plea bargaining and sentencing dynamics.

Feeney, sentencing, plea bargaining, departures

Abstract:
The articles, reports and commentary included in this Issue address a specialized but increasingly important area of federal sentencing: the administration of the federal death penalty. Apart from its independent legal, moral and symbolic significance, the issues raised by the return of capital punishment to the federal system resonate far beyond the limited number of federal death penalty cases brought each year. The articles and other materials included in this Issue situate federal capital prosecutions in a number of diverse contexts and from a number of diverse perspectives - from historical, doctrinal, policy-based and statistical approaches to personal accounts of what it is like to participate in the capital charging and trial process as a prosecutor or judge.

The Issue is divided into three sections. The first includes articles by academics and practitioners on specific legal and policy aspects of the federal capital sentencing scheme. In his contribution, Professor Rory Little examines the role of geographical diversity in federal capital charging and sentencing, analyzing the peculiarly strong tensions created within "Our Federalism" by a federal death penalty that can be enforced in states that have abolished capital punishment within their own state criminal justice systems. Professor Adam Thurschwell reconsiders the role of the Due Process Clause in guaranteeing the "heightened reliability" of contemporary capital trial procedures in light of historical evidence demonstrating the special deference paid to capital defendants' interests by the Founding-era judiciary in favorem vitae ("in favor of life"). Federal defender William Forman analyzes the potential implications of the Supreme Court's decision in Apprendi v. New Jersey for prosecutions under the Federal Death Penalty Act, while fellow federal defenders Ken Murray and Jon M. Sands discuss the complexities and paradoxes of applying federal death sentencing in the legal thicket of the statutes governing criminal jurisdiction in Indian Country. Last but not least, Professor William Schabas places the federal death penalty in the context of the applicable treaties and customary norms of international law.

The second section is comprised of selections from some primary materials addressing the concerns of both the Department of Justice and its critics that race has played an illegitimate role in federal capital charging and sentencing. Included here are excerpts from the Department of Justice reports issued under Attorney Generals Reno and Ashcroft, along with highlights of the statistics relied upon by these reports, as well as a critique of the latter report delivered via an open letter to U.S. Senator Russell Feingold by Professor David C. Baldus, a leading expert on the statistical evidence related to the role of race in capital punishment.

Finally, the third section places the federal capital prosecutions in the more personal context of the viewpoints of some of the key participants in the process. The Vera Institute provides an account of a roundtable discussion among a number of former United States Attorneys about their approaches to the capital charging process. And District Judge Michael A. Ponsor has supplied a personal account of what it was like to preside over the highly publicized capital case of United States v. Kristin Gilbert.

federal death penalty, capital punishment, death penalty, capital sentencing, federal sentencing