28 Pages Posted: 7 Mar 2008 Last revised: 12 Nov 2009
In the recent Booker, Rita, and Gall cases, the Supreme Court continued to loosen federal sentencing law without exploring the implications of broader trial-court sentencing discretion. Drawing on our previous work in positive political theory, this essay argues that binding sentencing guidelines are necessary to constrain trial-court discretion and permit meaningful appellate review. The Court has taken too rosy a view of trial-court sentencing discretion, undervaluing appellate review as a check on policy and ideological variations. Moreover, its case law discourages the transparency needed for appellate review and public scrutiny. Finally, this essay considers what guideline sentencing ought to look like if we could build it from scratch.
Keywords: criminal law and procedure, sentencing, guidelines, discretion
Suggested Citation: Suggested Citation
Bibas, Stephanos and Schanzenbach, Max M. and Tiller, Emerson H., Policing Politics at Sentencing. Northwestern University Law Review, Vol. 103, pp. 1371, 2009; U of Penn Law School, Public Law Research Paper No. 08-37; Northwestern Public Law Research Paper No. 08-29. Available at SSRN: https://ssrn.com/abstract=1102512