Rita, Reasoned Sentencing, and Resistance to Change

22 Pages Posted: 7 Oct 2007

See all articles by Douglas A. Berman

Douglas A. Berman

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


Federal judges have struggled mightily to comprehend the meaning and impact of the Supreme Court's landmark sentencing decision in United States v. Booker. In Rita v. United States, the Justices provided only limited additional Booker guidance having issued four opinions that raise more questions than they answered. The opinions in Rita revealed not only that the Court is still struggling with its Sixth Amendment jurisprudence, but also that the Justices have divergent views on the many other dynamic issues raised by the Booker remedy of an advisory guideline system.

As detailed in this article, the Booker remedy transformed a constitutional debate into a multi-dimensional cacophony of sentencing issues that Rita could only begin to address. Moreover, though Rita does answer a few key post-Booker questions, the opinions in Rita have passages that present new puzzles for anyone trying to sort through the post-Booker world of federal sentencing. Further, Rita and lower courts' early reactions to the decision ultimately reveal, yet again, that dramatic legal changes face resistance from sentencing actors who become acclimated to the status quo. Indeed, the history of modern federal sentencing reforms demonstrates that changes in legal doctrines become revolutionary only when they ultimately transform the legal cultures in which these doctrines operate. This lesson should be heeded not only by the Supreme Court as it considers another set of sentencing cases, but also by all would-be legal reformers in the field of sentencing and beyond.

Keywords: Fanfan, Sixth Amendment, Kimbrough, Gall, Sentencing Guidelines

JEL Classification: K14, K42

Suggested Citation

Berman, Douglas A., Rita, Reasoned Sentencing, and Resistance to Change. Denver University Law Review, Vol. 85, No. 1, 2007, Ohio State Public Law Working Paper No. 104, Available at SSRN: https://ssrn.com/abstract=1019334

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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