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Booker Rules

Amy Baron-Evans

Federal Public and Community Defenders

Kate Stith

Yale University - Law School

January 16, 2012

University of Pennsylvania Law Review, Vol. 160, p. 1631, 2012

For the first time, this paper examines the fateful 1987 statutory amendment that was interpreted by the Supreme Court to authorize the Sentencing Commission to make its guidelines, policy statements, and commentary binding on sentencing judges. The mandatory nature of the Commission's product ultimately led the Court to hold in United States v. Booker (2005) that the guidelines were unconstitutional. The advisory guideline system wrought by Booker has brought balance to federal sentencing and has reduced unwarranted disparity. The proposal of Judge (and former Commission Chair) William K. Sessions for Congress to reenact mandatory guidelines raises substantial constitutional issues, including separation-of-powers issues not previously addressed by the Supreme Court. The recent proposals of the Commission to establish more tightly constraining Guidelines would appear to violate Booker and subsequent cases. The purported bases for these proposals, in particular a Commission study concluding that racial disparity has increased, are unproven and methodologically flawed. There is no need for a "Booker fix"; Booker is the fix.

Number of Pages in PDF File: 113

Keywords: federal sentencing guidelines, United States v. Booker, multivariate analysis, racial discrimination, unwarranted disparity, The Sentencing Reform Act of 1984, the Sentencing Act of 1987, Sessions proposal, United States Sentencing Commission

JEL Classification: K14

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Date posted: January 17, 2012 ; Last revised: June 23, 2012

Suggested Citation

Baron-Evans, Amy and Stith, Kate, Booker Rules (January 16, 2012). University of Pennsylvania Law Review, Vol. 160, p. 1631, 2012. Available at SSRN: https://ssrn.com/abstract=1987041

Contact Information

Amy Baron-Evans
Federal Public and Community Defenders ( email )
Kate Stith (Contact Author)
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-4835 (Phone)

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