Michael M. O'Hear
Marquette University - Law School
September 22, 2008
Florida State University Law Review, Vol. 36, 2009
Marquette Law School Legal Studies Paper No. 08-23
Despite the Supreme Court's 2005 decision in United States v. Booker, which enhanced the power of district court judges to sentence defendants below the range prescribed by the federal sentencing guidelines, the great majority of federal sentences continue to follow the guidelines' recommendations. As defendants have challenged these practices, one commonly litigated issue has been the question of whether district court judges are obligated to explain themselves when they reject a defendant's argument for a below-guidelines sentence. In the immediate aftermath of Booker, a handful of federal circuits adopted such an explanation requirement. Since 2005, however, the tide has turned, and the initial pro-explanation holdings have been undermined by later decisions. Against this backdrop, the present Article provides the first systematic account of the rise and fall of the explanation requirement for federal sentences, attributing the fall to the courts' framing of the issue as a generic judicial process question. The courts have not recognized important justifications for the explanation requirement that are specific to the federal sentencing context. For instance, the requirement likely helps to diminish the effect of subtle cognitive biases that result in district court judges giving too much weight to the federal sentencing guidelines relative to other statutory and constitutional considerations. Additionally, the requirement is supported by research on the psychological effects of procedural justice, which suggests that defendants who are treated fairly at sentencing will have more respect for law and legal authorities than defendants who are treated unfairly. In light of these and other sentencing-specific concerns, the Article concludes with a call for reconsideration of the recent decisions that have sapped the explanation requirement of its vitality.
Number of Pages in PDF File: 35
Keywords: Booker, sentencing, sentencing guidelines, explanation, cognitive biases, procedural justice
JEL Classification: K14, K40, K41, K42Accepted Paper Series
Date posted: October 23, 2008
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