Making Sentencing Sensible

37 Pages Posted: 26 Oct 2006

See all articles by Douglas A. Berman

Douglas A. Berman

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

Stephanos Bibas

University of Pennsylvania Law School


This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law. Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice. The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs. A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury. Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge to exercise reasoned judgment. Juries should find offense facts, but judges may find offender facts and also exercise judgment at sentencing. Within these bounds, the Court should preserve states' flexibility to experiment with different roles for juries, judges, legislatures, sentencing commissions, probation and parole officers, and trial and appellate courts. In particular, while certain types of mandatory guidelines are constitutionally problematic, voluntary or even presumptive guidelines should be permissible so long as judges do not usurp the traditional role of juries and appellate courts meaningfully review sentencing judges' reasons for imposing sentences within and outside ranges. This modest approach, which preserves room for experimentation, fits best with legal-process values and is least likely to provoke evasion.

Keywords: Criminal Law and Procedure, Sentencing, Guidelines, Experimentation

JEL Classification: K14

Suggested Citation

Berman, Douglas A. and Bibas, Stephanos, Making Sentencing Sensible. Ohio State Journal of Criminal Law, Vol. 4, 2006, U of Penn Law School, Public Law Working Paper No. 06-42, Available at SSRN:

Douglas A. Berman

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

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

Stephanos Bibas (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)


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