Year: 2007
Type: article
Abstract: It is a pleasure to be in this school, and in particular, this setting.Justice Blackmun is a hero to me.I say that as a citizen, a lawyer, and now, as a judge.His work reflects the struggles inherent in the job of judging-confronting issues about which people feel deeply, grappling with one's own feelings, the judgments of one's colleagues, not to mention the limitations and possibilities of legal doctrine.In the area I teach and work, sentencing, Justice Blackmun's decision in United States v. Mistretta was a watershed.'In Mistretta, Justice Blackmun upheld the constitutionality of the United States Sentencing Guidelines.As I read the decision now, some fifteen years later, I realize that the Court made certain entirely reasonable assumptions about the institutions that would enforce the Guidelines.The Court assumed that the Guidelines would be applied by a robust and independent judiciary, whose time-tested expertise would hone them, permitting them to more adequately reflect the realities of federal sentencing.The Court assumed that the judges would work closely with a sentencing commission located in the judicial branch that would, like the judges, be independent of the political winds, an independence derived in part from their expertise as well.It assumed that Congress would happily allow this new synergy-between courts and the Commission-to create new sentencing standards, more rational and more fair than those which had preceded it.But the assumptions were wrong for a host of reasons that Justice Blackmun could never have anticipated.One of them is the subject of this talk.The judiciary failed Justice Blackmun and us.Many things can be said about the United States Sentencing Guidelines.(Most of them have been said by Professor Douglas Berman. 2 ) They have contributed to the increase in an already legendary incarceration rate in the United States.They have tripled the length of prison terms and resulted in the wildly disproportionate imprisonment of African Americans.3 They have transformed the sentencing process and in some ways, made it less transparent, and unquestionably less fair.
Author: Nancy Gertner
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2342444739