The Federal Sentencing Guidelines after Blakely and Booker: The Limits of Congressional Tolerance and a Greater Role for Juries
48 Pages Posted: 27 Jun 2005 Last revised: 9 Jun 2008
Abstract
On January 12, 2005, the Supreme Court issued its two-part opinion in United States v. Booker. In the first part of the opinion (Booker A), the Court held that it was a violation of the Sixth Amendment for a defendant's sentence to be enhanced based upon judicial fact-finding, as opposed to jury fact-finding. In effect, this part of the opinion rendered the Federal Sentencing Guidelines unconstitutional. In a second part of the opinion, however, (Booker B), the Court fixed the Guidelines by stripping them of their mandatory nature.
This Article argues that the Court's solution is both politically unsustainable and constitutionally problematic. Advisory guidelines will be unacceptable to Congress, which in recent years has acted to further constrain judicial discretion. In addition, the Booker B solution does nothing to further the interests of the Sixth Amendment that lie at the heart of Booker A. Accordingly, this Article proposes reforms to the Guidelines that would retain their mandatory nature while complying with the Sixth Amendment concerns raised in Booker A and its forerunner, Blakely v. Washington. Among other things, the article proposes jury involvement in a range of factual determinations that affect sentencing.
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