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A More Perfect System: Distinguishing Offense Conduct and Offender Characteristics


Douglas A. Berman


Ohio State University (OSU) - Michael E. Moritz College of Law


Stanford Law Review, Vol. 58, 2005
Ohio State Public Law Working Paper No. 44
OSU Center for Interdisciplinary Law and Policy Studies Working Paper Series No. 30

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.

Number of Pages in PDF File: 16

Keywords: Blakely, Fanfan, Apprendi

JEL Classification: K14, K42

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Date posted: September 20, 2005  

Suggested Citation

Berman, Douglas A., A More Perfect System: Distinguishing Offense Conduct and Offender Characteristics. Stanford Law Review, Vol. 58, 2005; Ohio State Public Law Working Paper No. 44; OSU Center for Interdisciplinary Law and Policy Studies Working Paper Series No. 30. Available at SSRN: http://ssrn.com/abstract=801208

Contact Information

Douglas A. Berman (Contact Author)
Ohio State University (OSU) - Michael E. Moritz College of Law ( email )
55 West 12th Street
Columbus, OH 43210
United States
614-688-8690 (Phone)
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