The Untimely Death (and Rebirth?) of the Federal Sentencing Guidelines

Abstract:     
This essay analyzes the Supreme Court's recent decisions concerning the Federal Sentencing Guidelines' constitutionality. I argue that the application of recent 6th Amendment jurisprudence to nonstatutory sentencing rules was a legal error, and one that may carry important political consequences. Especially combined with the Court's remedial decision - to render the Guidelines advisory and require reasonableness review by the courts of appeals - I suggest that the Guidelines Cases may yield an interbranch struggle with Congress over sentencing policy that the Court is not equipped to win.

Number of Pages in PDF File: 49

Keywords: Sixth Amendment, jury trial, sentencing guidelines, criminal procedure, sentencing, mandatory minumum

Accepted Paper Series