Assessing Federal Sentencing After Booker

Abstract

The origins, rationale, and meaning of the Supreme Court’s decision in United States v. Booker1 are all fascinating topics worthy of extended examination and analysis. But, for federal policy makers and practitioners (not to mention federal defendants), the most pressing concern is the impact of Booker on the current realities and future direction of the federal sentencing system. This Issue of FSR examines the state of federal sentencing after Booker and gives particular attention to whether, when, and how Congress should respond to Booker. Justice Breyer stressed in the remedial portion of the Court’s Booker opinion that Congress could choose to redesign the federal sentencing system in the wake of Booker. But an old proverb, which says “if it ain’t broke, don’t fix it,” perhaps counsels caution as Congress contemplates any “Booker fix.” As this Issue goes to press, the federal sentencing system has now had over six months to assess and adjust to Booker’s unexpected remedy for “curing” the federal sentencing guidelines of the Sixth Amendment problems with judicial fact-finding identified in Apprendi v. New Jersey2 and Blakely v. Washington.3 The article and extensive primary materials in this Issue highlight that it is now possible to identify the basic contours of federal sentencing after Booker, but they also suggest it may still be too early to reach firm conclusions about the current state and future development of federal sentencing policy and practice. The items in this Issue reveal that an initial challenge for policy makers and practitioners is to assess whether and how the post-Booker federal sentencing system may be broken in order to be able, in turn, to assess what sort of legislative fix might be needed.