Introduction to Federal Sentencing 13th Edition
By Henry J. Bemporad (July 2011)
In 1984, the Sentencing Reform Act replaced the broad discretion traditionally afforded federal judges in sentencing with far more limited authority, controlled by a complex set of mandatory sentencing guidelines promulgated by the U.S. Sentencing Commission. Mandatory-guidelines practice held sway for two decades, until it was fundamentally altered by the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), which excised the Act’s mandatory provisions and rendered the guidelines merely advisory.
Today, we practice in the world that Booker created. The Supreme Court returned discretion to the sentencing judge, but it left open many questions about the scope of that discretion, and the changes in sentencing procedure that the newly advisory guidelines might require. The Court has begun to answer these questions in a series of important decisions about post-Booker sentencing practice, the effects of which are being felt in sentencing courts around the country. Meanwhile, the Sentencing Commission has continued to promulgate new guidelines, and to weigh-in with its views on the advisory-guideline system. What does this mean for defense counsel? That we must be prepared to represent our clients’ interests in a time of potential change, and emerging opportunity.