Thursday, February 9, 2012
Amy Baron-Evans and Kate Stith (affiliation not provided to SSRN and Yale University - Law School) have posted Booker Rules (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:
For the first time, this paper examines the fateful 1987 statutory amendment that was interpreted by the Supreme Court to authorize the Sentencing Commission to make its guidelines, policy statements, and commentary binding on sentencing judges. The mandatory nature of the Commission's product ultimately led the Court to hold in United States v. Booker (2005) that the guidelines were unconstitutional. The advisory guideline system wrought by Booker has brought balance to federal sentencing and has reduced unwarranted disparity. The proposal of Judge (and former Commission Chair) William K. Sessions for Congress to reenact mandatory guidelines raises substantial constitutional issues, including separation-of-powers issues not previously addressed by the Supreme Court. The recent proposals of the Commission to establish more tightly constraining Guidelines would appear to violate Booker and subsequent cases. The purported bases for these proposals, in particular a Commission study concluding that racial disparity has increased, are unproven and methodologically flawed. There is no need for a "Booker fix"; Booker is the fix.