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What would a fully originalist approach to sentencing entail?

By Douglas A. Berman

The question in the title of this post is prompted by this interesting new piece available via SSRN by Will Tress titled "Unintended Collateral Consequences: Defining Felony in the Early American Republic."  Here is the abstract: At common law a felony was a crime that led to forfeiture of the convict?s property. In contemporary American law, a felony is usually defined as a crime that is punished by death, or imprisonment in a specially designated place (prison or penitentiary) or for a designated period of time (more than one year).  The attached article examines how that change came about, and fixes the time and place of the re-definition: New York in 1828, during a revision of that state?s statutes.  The choice made by the revisors, a compromise between radical reform and adherence to the common law tradition, is placed in the context of two early 19th century reform movements: Codification of the common law, and the founding of the penitentiaries...continue to full post

Full post as published by Sentencing Law and Policy on December 07, 2009 (boomark / email).