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Whither the Guidelines?

By Jeffrey T. Green and Quin M. Sorenson
May 30, 2007

You might be forgiven for concluding that the U.S. Sentencing Guidelines were largely a thing of the past following the Supreme Court's decision two years ago in United States v. Booker, 543 U.S. 220 (2005). The Court held that the Guidelines were purely advisory ' not mandatory ' and just one among many factors to be consulted in meting out a sentence under 18 U.S.C. ' 3553(a). Other factors specified in ' 3553(a) include such overarching considerations as deterrence, respect for the law, and potential for rehabilitation. Given the overt hostility previously expressed by sentencing courts to the Guidelines, you might have thought that the Guidelines had atrophied to the point of disuse. You'd be wrong. The Supreme Court is now considering two cases that may restore the Guidelines to their former position of dominance in sentencing proceedings across the United States: Rita v. United States, No. 06-5754, and Claiborne v. United States, No. 06-5618.

Discretion Is Given, Then Taken Away

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