Seeking Justice Below the Guidelines: Sentencing as an Expression of Natural Law
Mark William Osler
University of St. Thomas - School of Law (Minnesota)
March 20, 2009
Georgetown Journal of Law & Public Policy, Forthcoming
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.
Number of Pages in PDF File: 53
Keywords: sentencing, criminal law, philosophy, natural law, higher law
JEL Classification: K14, K41, K42Accepted Paper Series
Date posted: March 22, 2009 ; Last revised: January 26, 2010
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