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New academic paper on acquitted conduct after Booker

By Douglas A. Berman

As regular readers know, I have strong feelings about acquitted conduct sentencing enhancements after Blakely and Booker (and these feelings are surely impacted by the fact that I have beeing involved in a lot of post-Booker acquitted conduct appellate litigation).  Consequently, I plan to read with great interesting this new piece I noticed on SSRN, titled "'Doing Time'.... After the Jury Acquits: Resolving the Post-Booker Acquitted Conduct Sentencing Dilemma."  Here are portions of the article's (long) abstract:For the past two years, post-Booker cases have revealed deep contradictions between three important, but directly competing, constitutional-policy imperatives, i.e. (a) defining the limits of Congress' power to establish uniform sentencing policy and procedures, to eliminate or reduce apparent disparities in sentencing between judges; (b) re-establishing the system of individuated, case-specific sentences by permitting broader judicial discretion in sentencing; and (c) protecting the Sixth Amendment right to jury-found facts as a bulwark against governmental over-reaching, in the context of judicial decision-making...continue to full post

Full post as published by Sentencing Law and Policy on February 24, 2008 (boomark / email).