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 postsentencing guidance, communication, and action. These mechanisms can enhance a sentencing system's vitality by providing guidance from "above and beyond."...

 

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