Federal Sentencing Reporter
As the Supreme Court has turned federal sentencing upside down in Booker, it has left a host of open questions in the wake of that decision. The outcome of these questions is often difficult to predict, for lower courts and commentators alike, as the Court has failed to develop an overarching sentencing philosophy to replace the rehabilitation-focused one that animated sentencing for so long. If the Court were to reach consensus on that issue, it would be better able to speak coherently on unresolved sentencing matters. This introduction to an Issue of the Federal Sentencing Reporter highlights some of the possibilities the Court may embrace in choosing such a philosophy, ranging from a public safety based approach to one grounded in more traditional punishment norms. The Court, however, will continue to face sentencing issues in a host of other arenas as well: The role foreign law should play in judicial decision-making, for example, has surfaced in high-profile cases ultimately involving the imposition of the death penalty. How could the Chief Justice use his administrative role to change the face of federal sentencing? Will the Court reinvigorate the Eight Amendment jurisprudence in non-death cases? If the Court takes on the challenge to develop a coherent approach to such issues, it may be able to position itself effectively to guide the future of sentencing in this country.
Nora V. Demleitner, Where to Go From Here? The Roberts Court at the Crossroads of Sentencing, 18 Fed. Sent'g Rep. 221 (2005).