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Copyright (c) 2005 The University of Chicago
The University of Chicago Legal Forum

ARTICLE: Punishment and Crime: Reconceptualizing Sentencing


2005 U Chi Legal F 1


Douglas A. Berman +


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," 1 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 decisionmaking. These modern sentencing developments constitute one of the most dynamic and important law reform stories in recent American legal history -- a veritable sentencing revolution. 2

Yet the modern sentencing era has been marked by a failure to reconceptualize modern sentencing. The new sentencing laws, the United States Supreme Court's sentencing jurisprudence, and even the scholarly literature in the field, 3 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 decisionmaking 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 4 and United States v Booker 5 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 ...
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