Conceptualizing Booker

38 Pages Posted: 5 Jun 2006

See all articles by Douglas A. Berman

Douglas A. Berman

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


The Supreme Court's decision in United States v. Booker appears to be a two-headed monster and a conceptual monstrosity. In Booker, dual 5-4 majorities issued dueling opinions in which the Supreme Court first held that the operation of the federal guidelines as mandatory sentencing rules violated the Sixth Amendment jury trial right, but then crafted a remedy that rendered the guidelines advisory and thus greatly enhanced the sentencing power of judges. Read independently, each majority opinion in Booker seems conceptually muddled; read together, the two Booker rulings seem almost conceptually nonsensical. Yet, viewed from a functional perspective, the Booker decision makes more conceptual sense than it may at first appear. Though a deeply fractured Supreme Court has not been able to work together to forge a clear sentencing jurisprudence, some sound sentencing concepts can be identified within both majority opinions in Booker. Booker comes into sharper conceptual focus when located within broader stories about sentencing reform and constitutional jurisprudence. Reflecting on sentencing history and recent reforms, this article suggests a simple idea that helps unlock the conceptual mystery presented by Booker: sentencing is a distinct enterprise in the criminal justice system - and thus should permit a distinct constitutional structure - if and only when sentencing decision-makers are exercising reasoned judgment.

Building on this concept, this Article explains how the two parts of the Booker opinion can be conceptually harmonized around the idea that broad judicial power at sentencing can be justified if and only when judges are exercising reasoned judgment. In other words, Booker's conceptual core - what we might call the Tao of Booker - is best understood not in terms of vindicating the role of juries and the meaning of the Sixth Amendment's jury trial right, but rather in terms of vindicating the role of judges and the meaning of sentencing as a distinct criminal justice enterprise defined and defensible in terms of the exercise of reasoned judgment. Conceptualizing Booker as a decision vindicating the role of judges exercising reasoned judgment at sentencing has important implications for the Supreme Court's still developing Sixth Amendment jurisprudence and for how lower courts should approach federal guideline sentencing after Booker.

Keywords: sentence, Apprendi, Fanfan, rehabilitation, Blakely

JEL Classification: K14, K42

Suggested Citation

Berman, Douglas A., Conceptualizing Booker. Arizona State Law Journal, Vol. 38, 2006, Ohio State Public Law Working Paper No. 70, 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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