Into the Briar Patch?: Power Shifts between Prosecution and Defense after United States V. Booker
16 Pages Posted: 8 Mar 2005
In this paper, I consider the Supreme Court's explanation of the constitutional problem in United States v. Booker and its chosen remedy in assessing the potential ramifications for the Government and the defense. I argue that the solution carved out by the Booker Court was the best solution the Government could have hoped for following Blakely and its predecessors. First, the Court did not explicitly require that the reasonable doubt standard be used at sentencing. This undermines the procedural safeguards sought by the defense. For many defendants, this will permit "the sentencing factor tail to continue wagging the conviction dog." Second, preliminary evidence suggests that judges will continue applying the guidelines even though they are now advisory. In many instances, judges will be free to give higher sentences than those previously available under the guidelines. Third, defendants who want to challenge their advisory sentences will be subject to the watered-down reasonableness standard on appeal rather than being entitled to the prior de novo review.
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