Reconceptualizing Sentencing

54 Pages Posted: 20 Sep 2005

See all articles by Douglas A. Berman

Douglas A. Berman

Ohio State University (OSU) - Michael E. Moritz College of Law


The transformation of the sentencing enterprise throughout the United States over the past three decades has been remarkable. The field of sentencing, once rightly accused of being "lawless," is now replete with law. Legislatures and sentencing commissions have replaced the discretionary indeterminate sentencing systems that had been dominant for nearly a century with an array of structured or guideline systems to govern sentencing decision-making. These modern sentencing developments constitute one of the most dynamic and important law reform stories in recent American legal history - a veritable sentencing revolution.

And yet the modern sentencing era has been marked by a failure to reconceptualize modern sentencing. The new sentencing laws, the Supreme Court's sentencing jurisprudence, and even the scholarly literature in the field, are all conceptually underdeveloped. The basic story of the sentencing revolution, especially in the federal system, has been frequently recounted, but the theories, structures and procedures of modern sentencing decision-making have not been deeply examined.

Against this backdrop, it is not all that surprising that the Supreme Court's blockbuster rulings in Blakely v. Washington and United States v. Booker have generated puzzled reactions and some impassioned criticisms, even though the decisions reflect certain fundamentally sound conceptual principles. The drama that has surrounded the Blakely and Booker decisions - and their aftermath - ultimately reflects a collective failure to reconceptualize sentencing in the wake of the sentencing revolution. It also makes more urgent the task of reconceptualizing modern sentencing.

This Article reviews the modern revolution of sentencing laws to spotlight that the U.S. Supreme Court's recent work in Blakely and Booker is just the latest dramatic chapter in a lengthy, dynamic, and conceptually confused story about evolving sentencing rules and practices. The Article suggests that a chief lesson to be drawn from Blakely and Booker, and the dramas that have surrounded these decisions, is that policymakers, courts, and academics are long overdue to take up the task of reconceptualizing modern sentencing. The article suggests a few key sentencing concepts which could help begin the overall - and overdue - project of broadly reconceptualizing modern sentencing reforms.

JEL Classification: K14, K42

Suggested Citation

Berman, Douglas A., Reconceptualizing Sentencing. University of Chicago Legal Forum, 2005, Ohio State Public Law Working Paper No. 43, Available at SSRN:

Douglas A. Berman (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Street
Columbus, OH 43210
United States
614-688-8690 (Phone)

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