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- Title
APPRENDI/BOOKER AND ANEMIC APPELLATE REVIEW.
- Authors
GERTNER, NANCY
- Abstract
The Supreme Court's case law following Apprendi v. New Jersey and United States v. Booker, and the decisional law of the federal appellate courts, have had unintended and less than salutary results. While the appellate courts were uniquely suited to offer a meaningful critique of the Federal Sentencing Guidelines ("Guidelines") as well as substantive guidance about what non-Guidelines sentencing might involve, they have largely abdicated those roles. Judicial critiques of the Guidelines could have made the U.S. Sentencing Commission more accountable and could have imposed the kind of review that other agency rules and criminal statutes receive by requiring that the Guidelines be aligned with the purpose of sentencing and based on studies and data. But since the appellate law requires nothing more than that the district courts compute the Guidelines correctly, there is no incentive to critique them. Nor have appellate courts provided any substantive guidance concerning what non-Guidelines sentencing should involve or what principles should inform non-Guidelines sentences. The result is that interpretation of the Guidelines has stalled, on the one hand, and the substantive law of sentencing is chaotic, on the other.
- Subjects
UNITED States; RIGHT to trial by jury; SENTENCING guidelines (Criminal procedure); UNITED States v. Booker; UNITED States. Constitution. 6th Amendment; UNITED States appellate courts; UNITED States Sentencing Commission
- Publication
North Carolina Law Review, 2021, Vol 99, Issue 5, p1369
- ISSN
0029-2524
- Publication type
Article