Wednesday, November 4, 2009
Stephanos Bibas (University of Pennsylvania Law School; pictured), Max M. Schanzenbach (Northwestern University School of Law), and Emerson H. Tiller (Northwestern University School of Law) have published an interesting essay in the Northwestern University Law Review entitled Policing Politics at Sentencing. Here is an excerpt from the conclusion:
This Essay applied positive political theory and recent empirical evidence to critique the Supreme Court’s sentencing guidelines jurisprudence. We conclude that the Court’s jurisprudence is deeply misguided. Binding guidelines and searching appellate review are needed to make sentencing more consistent and legitimate. In addition, the Guidelines reflect a political bargain struck by legislators and sentencing commissioners, a compact that judges should honor. The Court’s new tack on sentencing undermines this process by reducing appellate court review for departures and creating a new ground for departures—the nebulous and hard-to-review policy departure. On the other hand, we endorse the trend toward more robust appellate review of sentencing adjustments, which judges can at times manipulate to alter sentences substantially. Stricter review of adjustments makes the review of sentences more symmetric and should rein in discretion. Of course, even this beneficial feature of Booker and its progeny could be undermined if judges are also freer to depart.