Judge McConnell on “The Booker Mess”
Judge Michael McConnell has written a terrific and short law review article on the aftermath of the Supreme Court’s decision on the Sentencing Guidelines, United States v. Booker. You can get the article here in .pdf format: The Booker Mess, 83 Denv. U. L. Rev. 665 (2006). From the introduction:
In this Foreword, I will address three questions, one empirical, one doctrinal, and one normative:
(1) What has been the effect of Booker on sentencing? In this, I will focus particularly on the Tenth Circuit.
(2) Are the Booker decisions coherent as a matter of constitutional doctrine?
(3) Has Booker improved the sentencing process as a practical matter?
From the conclusion:
I am inclined to think that a modest increase in the discretion of district judges, exercised judiciously, could enhance justice. In this sense, I welcome the Booker result, even though I cannot endorse its reasoning. But it was more important to take a serious look at the statutes governing sentencing. This is a matter for Congress. I fear that Booker, by putting forward an extravagant claim of constitutional principles coupled with an anemic and self-contradictory remedy, may have set back the cause of reform, to relatively little purpose.
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