Federal Courts Law Review

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FEDERAL COURTS LAW REVIEW - 2005 Fed. Cts. L. Rev. 9

EVOLVING ROLES IN FEDERAL SENTENCING: THE POST-BOOKER/FANFAN WORLD

By Robert J. Anello and Jodi Misher Peikin

Abstract

[a.1] This article examines the federal sentencing process as it has changed over the past twenty years, with particular attention to the impact made by the Supreme Court's 2005 ruling in the combined decision of United States v. Booker and United States v. Fanfan. The authors examine the practice of sentencing in the federal system during the period prior to the implementation of the Federal Sentencing Guidelines when sentencing was exclusively the province of district court judges whose input was provided almost exclusively by defense attorneys. Broad judicial discretion and the virtual lack of any appellate oversight led to the perception by some that the federal sentencing system resulted in disparate sentences for similarly situated offenders. Ultimately, such a perception led to the passage of the Sentencing Reform Act by Congress and the Guidelines.

[a.2] The authors next examine the implementation of the Guideline's mandatory formulaic approach which severely limited sentencing judges' roles while vastly expanding the role of the government prosecutor and probation department in determining what sentence would be imposed. In place for almost 18 years, this system was reexamined by the Court in Booker/Fanfan, which rendered the Guidelines advisory rather than mandatory. The article analyzes the Booker/Fanfan decision and its impact on district and circuit courts in the nation.

[a.3] Finally, the authors evaluate the future of federal sentencing with new found discretion among district court judges under the watchful eyes of appellate courts, as well as the more balanced participation of defense attorneys and prosecutors. Congress and the United States Sentencing Commission are encouraged to give the new system time to take shape before implementing changes. The authors express hope that lessons learned form the mistakes of both the indeterminate sentencing system and the determinate sentencing system will lead to a happy medium.

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