A Personal Affair: Moral Obligation and the New Common Law of Sentencing
International Journal of Punishment and Sentencing, Forthcoming
37 Pages Posted: 2 May 2009
Date Written: May 1, 2009
Sentencing has a tortured history in the federal system. The Sixth Amendment, due process, and separation-of-powers problems with the current sentencing regime have been extensively documented. But this Article deals with a different problem. This Article deals with the moral failure of the federal sentencing regime. This Article contend that the current system of federal sentencing fails to treat defendants as human beings and, as such, fails to fulfill its moral obligation to impose just sentences. As a response, this Article proposes a new paradigm for federal sentencing. This Article outlines a federal sentencing regime based on guided, principled judicial discretion, which I refer to as "the new common law of sentencing." The primary argument is based on the moral obligation that society and the criminal-justice system have in the context of sentencing. Our criminal-justice system has an obligation to impose just sentences. Any given sentence cannot be just, however, unless it takes the individuality of the defendant into account in a way that is impossible under the mechanical system currently in place. This Article proposes a new paradigm for sentencing based on guided judicial discretion. This new model, which is referred to as the "new common law of sentencing," is an attempt to return to the judicial-discretion model of sentencing while alleviating the problems that plagued the pre-1984 sentencing system. In effect, it argues for a return to the literal text of the Sentencing Reform Act and a rejection of the presumptions in favor of the Sentencing Guidelines.
Keywords: Punishment, Sentencing, Sentencing Guidelines, Moral, Ethics, Criminal, Judicial Discretion
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