Confronting Political Disagreement About Sentencing: A Deliberative Democratic Framework

Abstract

There is broad agreement that the American criminal sentencing system is deeply flawed, yet current theoretical frameworks for sentencing have failed to offer a way forward for reform. These frameworks have not faced up to political disagreement. Instead, they either try to impose disputed moral theories or they downplay normative considerations and seek to impose numerically consistent, rather than normatively justified, sentences. The failures of both approaches are in evidence in the process that led to the development of the United States Sentencing Guidelines.

This Article is the first to offer a framework to directly and effectively confront political disagreement. It draws on deliberative democratic conceptions of legitimacy to develop a framework for sentencing that addresses disagreement. Deliberative democracy offers a normatively grounded approach to managing disagreement through collective reasoning, which aims to place the legal system under public control. This Article articulates criteria for evaluating legal systems from the perspective of a particular conception of deliberative democratic legitimacy and offers reforms to enable the current system to better embody those criteria.

Keywords: sentencing, federal sentencing, criminal justice reform, legal theory, deliberative democracy, philosophy

JEL Classification: K14