Moritz College of Law - The Ohio State University Law School

Sentencing Law Resources

External Booker Sites

Contact Information

(614) 688-8690
berman.43@osu.edu
Drinko 313
Profile

Education

A.B., Princeton University, Philosophy, 1990 (summa cum laude)
J.D., Harvard Law School, 1993 (magna cum laude)

Areas of Expertise

Criminal Law
Death Penalty
Sentencing

Fall '08 Courses

Winter '09 Courses

Doug Berman's Sentencing Law Resources: Booker Basics

In June 2004, the Supreme Court issued a dramatic ruling in the state case of Blakely v. Washington and suggested that the Sixth Amendment demands that any and every fact which increases a defendant's effective maximum sentence must be found by a jury beyond a reasonable doubt or admitted by the defendant. (For more background on Blakely , visit this Blakely Basics page.)

The Blakely case, through formally addressing only the sentencing guidelines used in Washington state, immediately cast significant constitutional doubt on the operation of the federal sentencing system. The federal sentencing guidelines, which have been in force for more than 15 years, have always mandated that federal judges find certain facts when determining an applicable sentencing range for individual federal defendants. In the wake of Blakely, lower federal courts divided over whether and how that case applied in the federal system, and the Supreme Court was forced to address this issue in the consolidated cases of United States v. Booker and United States v. Fanfan.

In these consolidated cases, a deeply divided Supreme Court issued two distinct majority opinions: in the first ruling, five Justices, led by Justice Stevens, declared that the federal sentencing guidelines, when instructing judges to make factual findings to calculate increases in applicable sentencing ranges, transgressed the Sixth Amendment's jury trial right. But, surprisingly, as a result of Justice Ruth Bader Ginsburg's switched vote, a different group of five Justices, led by Justice Breyer, concluded that the remedy for this Sixth Amendment problem was to declare the federal sentencing guidelines wholly advisory. Consequently, the guidelines are now an intricate set of suggestions for district judges: at sentencing, federal judges must continue to consult the guidelines, but no longer is a judge obliged to sentence within the ranges prescribed therein.

Though the Booker decision conclusively resolved that the federal sentencing guidelines may no longer operate as mandatory rules (as they have for more than 15 years), the remedy adopted by Justice Breyer's opinion raises many new questions that must be resolved by lower courts. In addition, there are on-going debates within the U.S. Sentencing Commission and the U.S. Congress concerning whether an advisory guidelines system will facilitate and foster fair and effective federal sentencing