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"Luck or Law? The Constitutional Case Against Indeterminate Sentencing"

By Douglas A. Berman

The title of this post is the title of this provocative new abstract by Professor Dan Markel now up at at SSRN.  Here is the abstract: In the majority of states indeterminate sentencing schemes prevail ? under which the decision for whether a person serves anywhere from one year to a life in prison for a given crime is left largely to the unfettered discretion of a judge.  Indeed, ever since the Supreme Court decided Booker v. United States and thereby rendered the federal sentencing guidelines ?effectively advisory,? many state courts have read Booker to lend an imprimatur upon their indeterminate sentencing schemes.  Thus, in many jurisdictions, virtually no restraints upon judicial and/or executive discretion exist to ensure that similarly situated offenders convicted of similar criminal conduct will, within the same sovereign jurisdiction, receive punishments that are roughly similar to each other...continue to full post

Full post as published by Sentencing Law and Policy on June 06, 2009 (boomark / email).