In 1984 the Sentencing Reform Act (SRA) was adopted after years of proposed legislation and hearings in both houses. The SRA established Congress as a national leader in modern sentencing reform--one of the great criminal justice reform movements of the past century. At a time when both liberals and conservatives believed the classic American indeterminate sentencing model had failed, Congress constructively undertook, and, after a long and dogged effort, made great progress in meeting, the challenge of developing a new model of more principled sentencing. [...]

Sentencing reform is in the eye of the beholder. When most federal district court judges, assistant U.S. Attorneys, and sentencing policy analysts recently would have said that the Federal Guidelines should be made less prescriptive, less severe, and less rigid, Congressman Tom Feeney introduced and won passage of a bill meant to make the Guidelines more prescriptive, more severe, and more rigid. [...]

The reform goal of promoting reasonable consistency and reducing disparity in sentencing is meaningless without a frame of reference--consistency or disparity relative to what underlying principles? In order to decide that two offenders are similarly situated and thus should receive similar sentences (or that they are dissimilar and should receive different sentences) we must first define the relevant sentencing factors (the offense and offender characteristics that judges should consider in determining appropriate sentences) and the weight to be given to each of these factors. [...]

When viewed from any coherent normative perspective, the Federal Sentencing Guidelines have failed to reduce disparity and probably have increased it. Even on paper, these Guidelines often fail to treat like offenders alike, and the Guidelines are worse in practice than on paper. The luck of the judicial draw appears to determine the sentences offenders serve as much as or more than it did before the Guidelines; the region of the country in which an offender is sentenced now makes a greater difference than it did before the Guidelines; and racial and gender disparities have increased...

The federal system of the United States is based on the bedrock premise that the states bear the primary responsibility for criminal justice policy. States are better able to ensure that local communities can define crimes and set sentences according to the preferences of their residents. Indeed, it has long been recognized that criminal justice is at the core of state, not national, responsibility. [...]

While federalism justifies variations among state laws, federal criminal law is supposed to be a uniform national response to crimes of national import. On paper, a single set of federal criminal statutes and Federal Sentencing Guidelines applies uniformly throughout the United States. But in practice, federal criminal charges and sentences vary greatly from state to state and from district to district. For example, some districts regularly prosecute low-level drug offenders. Others set high drug-quantity thresholds for charging and refer less significant cases to state authorities. [...]

The pre-Booker Federal Sentencing Guidelines were, by far, the most vigorously enforced sentencing guidelines in the nation. That is to say, under pre-Booker federal law, judicial sentencing discretion was hemmed in--by a combination of statutory and administrative rules--to a much greater extent than under the laws of any state. As compared with eighteen state guidelines systems in operation in early 2005, the federal system was a stark outlier in its emphasis on rule over discretion. [...]

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. [...]

The Supreme Court has a remarkable history of blunders and retreats when it comes to the relationship between the Constitution and substantive criminal law, and it is in the process of committing another one, in our view. There are at least eight instances in which the Court has handed down a case with dramatic potential to subvert substantial parts of the criminal law, only to later more or less withdraw from the field...

By declaring that the Federal Sentencing Guidelines are no longer fully binding "law" and thereby shifting some discretionary authority back to individual judges, United States v. Booker creates the opportunity to finally vindicate the holding in United States v. Mistretta. Congress can establish a new sentencing agency that is truly located in the judicial branch and that provides independent and expert sentencing guidance to judges. [...]

Careful analysis of the twenty-year-old federal experiment with structured sentencing suggests one overriding conclusion about the design of sentencing systems: a sentencing system that sensibly distributes power--both the power to make sentencing rules and the power to determine sentences in particular cases--among the institutional sentencing actors is likely to work pretty well. Conversely, a system that concentrates sentencing power disproportionately in the hands of one or even two institutional sentencing actors is headed for trouble. [...]

All sentencing systems make use of information beyond the elements of the offense of conviction. This practice, known generally as "real-offense sentencing," is necessary because of the complexity and variety of criminal behavior and the need to keep criminal statutes relatively simple. Two defendants convicted of violating the same statute may be very different in terms of amount of harm caused, levels of personal culpability, and degrees of dangerousness to the community. [...]

The universe of sentencing considerations can be divided between offense conduct and offender characteristics. Historically, offense conduct (e.g., harms to victims, whether a weapon was used, the amount of money stolen or drugs trafficked) and offender characteristics (e.g., an offender's prior criminal history, employment record, family circumstances) have both played a significant role in sentencing decisionmaking, and both types of considerations remain central in modern sentencing systems. [...]

For over two hundred years our nation's legislatures have, for the most part, rejected mandatory penalties in favor of judicial discretion to sentence within a designated range. This policy has endured, despite shifts in punishment philosophy, for two reasons. First, any offense definition is necessarily inexact, sweeping in less culpable offenders who just barely violate its terms along with hardened criminals who cause far more harm than its drafters envisioned. A sentencing range allows the judge to adjust the sentence to address these individual cases. [...]

Stark theoretical and ideological differences abound regarding the purpose of punishment, the circumstances under which it can be imposed, and who holds the ultimate authority to impose it. Because these age-old debates are not likely to be resolved in the near future, should Congress decide to address the issue of federal sentencing again, it ought to begin its inquiry from a point of consensus. Are there "first principles" of punishment and sentencing on which most Americans can agree? [...]

The last quarter of the twentieth century stands out as the most remarkable period of change in American penal policy even when the entire history of the United States is considered. Nothing in the two centuries before 1975 would prepare observers to expect that a long run of stable rates of incarceration would shift to a fourfold expansion of rates of imprisonment in less than three decades. This Article will consider the origins and careers of proposals for penal legislation in a time of radical change. [...]

Federal sentencing increasingly differs from sentencing in the states. While both systems have shared rising imprisonment rates throughout the last two decades, the federal rate has grown more sharply and continues to increase. States have developed some strategies to combat the growing costs of prisons, which have been fueled by the imprisonment of nonviolent drug offenders, lengthened sentences for violent offenders, and the return to prison of those who violated parole and supervised release conditions. [...]