Copyright (c) 2008 All rights reserved. http://works.bepress.com/steven_chanenson Recent documents in Steven L. Chanenson en-us Thu, 03 Jan 2008 18:02:17 PST 3600 http://works.bepress.com/steven_chanenson/14 http://works.bepress.com/steven_chanenson/14 Fri, 10 Aug 2007 13:44:35 PDT Steven L. Chanenson http://works.bepress.com/steven_chanenson/13 http://works.bepress.com/steven_chanenson/13 Fri, 10 Aug 2007 13:43:36 PDT Steven L. Chanenson http://works.bepress.com/steven_chanenson/12 http://works.bepress.com/steven_chanenson/12 Fri, 10 Aug 2007 13:40:21 PDT Steven L. Chanenson http://works.bepress.com/steven_chanenson/11 http://works.bepress.com/steven_chanenson/11 Fri, 10 Aug 2007 13:38:37 PDT Steven L. Chanenson http://works.bepress.com/steven_chanenson/10 http://works.bepress.com/steven_chanenson/10 Fri, 10 Aug 2007 13:34:39 PDT Steven L. Chanenson http://works.bepress.com/steven_chanenson/9 http://works.bepress.com/steven_chanenson/9 Fri, 10 Aug 2007 13:33:57 PDT Steven L. Chanenson http://works.bepress.com/steven_chanenson/8 http://works.bepress.com/steven_chanenson/8 Fri, 10 Aug 2007 13:32:44 PDT Steven L. Chanenson http://works.bepress.com/steven_chanenson/7 http://works.bepress.com/steven_chanenson/7 Fri, 10 Aug 2007 13:24:02 PDT Criminal sentencing does not just happen in the courtroom. Some key sentencing decisions happen long before court convenes, while other critical sentencing decisions take place long after court adjourns. Although the public focuses primarily on the black-robed figure wielding the gavel, sentencing reflects decisions by a veritable parade of actors, including legislators, sentencing commissioners, police officers, prosecutors, juries, trial judges, appellate judges, and executive branch officials. All of these people guide and constrain the sentencing process. Through their official actions, they inform each other about what is happening in their corners of the sentencing drama, and prod their counterparts to respond appropriately. As the Supreme Court has written, the federal constitutional design assumes that the branches of government "converse with each other on matters of vital common interest."Many of the points of communication, leverage, and decision that operate before the trial judge imposes the sentence--including the congressionally set maximum for the offense, mandatory minimums, and the Federal Sentencing Guidelines--have played a central role in the policy and scholarly debate following the Sentencing Reform Act of 1984. Less discussed over the past two decades--but just as vital--are several devices that can provide important post-sentencing guidance, communication, and action. These mechanisms can enhance a sentencing system's vitality by providing guidance from "above and beyond."This Article explores three post-sentencing tools, and provides advice to Congress on how they could be used. Part I advocates for the meaningful appellate review of sentences. There are various ways to organize such review, and it remains unclear how the federal system will operate after the dust settles from the Supreme Court's recent decisions in Blakely v. Washington and United States v. Booker. Regardless, Congress can build on the recognized value of sustained and substantial interchange between sentencers by taking tangible steps to improve the communicative role of appellate review and to reinforce its structural framework. For example, Congress can work to reduce appellate conflict over the Guidelines by creating a special appellate court, the Court of Appeals for Sentencing, which would resolve important questions of sentencing law. Part II explores the role of discretionary parole release authority and concludes that a modest version of this device can offer important benefits in a post-Booker world. It observes that a properly structured indeterminate sentencing scheme, which by definition includes discretionary parole release, would both enable Congress to create a more tightly controlled front-end sentencing system if it so chose, and to institutionalize communication from the back-end sentencers. Finally, Part III examines the possibility of Extended Sentence Review (ESR) for certain long-serving, older offenders. This type of hybrid review--part clemency and part discretionary parole release--may have a significant, but limited part to play in modern sentencing. At a systemic level, ESR, by evaluating past sentencing decisions, would offer insights and lessons that current sentencers can use to craft sentencing policy today. Nevertheless, responsible sentencing decisions at the front-end should restrict the need for substantial ESR activity. Steven L. Chanenson Criminal Law and Procedure http://works.bepress.com/steven_chanenson/6 http://works.bepress.com/steven_chanenson/6 Fri, 10 Aug 2007 13:24:01 PDT Soon after the Supreme Court in Blakely v. Washington declared certain judicial fact-finding within a state sentencing guideline system unconstitutional, Justice O'Connor described the Court's decision as a "Number 10 earthquake." But two years after the Blakely ruling, the case's broader impact and meaning for state criminal justice systems around the country has been largely overshadowed by developments in the federal sentencing system. Nevertheless, this is an exciting time for state sentencing. By granting review in yet another state sentencing case, California v. Cunningham, this past spring, the Supreme Court brings state issues to the national stage once more.State courts handle many more criminal cases than the federal courts. State sentencing procedures touch the lives of many more defendants, victims and witnesses than the federal sentencing system. Yet, these realities often get lost in all the attention paid to the federal sentencing system in the era of the United States Sentencing Guidelines, perhaps because the federal system is in everyone's backyard whether that backyard is in Manhattan or Montana. Especially in the academic world, there is seemingly endless interest in federal sentencing law and practices, but precious little discussion of state sentencing reforms generally or of developments in particular states.The direct and indirect impact of Apprendi and especially Blakely in the states is a rich and dynamic story, with many facets and lessons that should not be overlooked. The doctrinal uncertainty and confusion produced by Blakely and Booker makes it dangerously easy for jurisdictions to be concerned primarily with technical problems in particular sentencing laws rather than with broader reform issues. But the Supreme Court's coming work in Cunningham, like Blakely before it, should motivate state legislatures, courts, and sentencing commissions to reexamine and improve their sentencing systems.In this Commentary - which serves as the introduction to a broader symposium on state sentencing after Blakely - we argue in favor of robust state sentencing commissions as part of that reexamination and improvement. Creating and empowering a sentencing commission closes few, if any, substantive options for state sentencing systems. The resulting sentences urged by a sentencing commission can be comparatively high and tightly controlled by a central authority. In contrast, sentences can also be set relatively low and sentencing decisions can be left comparatively unencumbered by binding guidance. A pro-commission view is a process-oriented recommendation with few, if any, inherent substantive sentencing consequences. It does, however, encourage much-needed rationality and transparency in sentencing. Douglas A. Berman Criminal Law and Procedure http://works.bepress.com/steven_chanenson/5 http://works.bepress.com/steven_chanenson/5 Fri, 10 Aug 2007 13:24:01 PDT Modern federal appellate review of sentences is a recent phenomenon introduced by the Sentencing Reform Act of 1984. Before United States v. Booker, courts of appeal focused on enforcing the technical rules of the federal sentencing guidelines and did so with (over)zealous enthusiasm. In the new post-Booker world, appellate judges are supposed to review sentences for "reasonableness." But how are they supposed to determine what is - or is not - a reasonable sentence? The answer to this puzzle rests in the mind of the District Judge. This short essay argues that the sentencing judge must explain his reasons, and meaningfully document - in the form of sentencing opinions - how he grappled with the relevant statutory factors from the Sentencing Reform Act of 1984 in reaching the sentence imposed. Steven L. Chanenson Criminal Law and Procedure