TITLE

United States v. Booker and United States v. Fanfan: The Tireless March of Apprendi and the Intracourt Battle To Save Sentencing Reform

AUTHOR(S)
Bloom, Douglas B.
PUB. DATE
June 2005
SOURCE
Harvard Civil Rights-Civil Liberties Law Review;Summer2005, Vol. 40 Issue 2, p539
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
ABSTRACT
This article discusses U.S. court cases on legislative control over sentencing decisions. The U.S. Supreme Court's decision in Apprendi versus New Jersey marked the beginning of a dramatically new role for the criminal jury. The Court, in an effort to protect the democratic voice in the courtroom from what it perceived to be the encroachment of legislative control over sentencing decisions, demanded that all facts necessary to increase the penalty beyond the statutory maximum be tried to a jury beyond a reasonable doubt. Far from enhancing the jury's role, however, Apprendi's abandonment of the long-standing distinction between sentencing facts and elements of an offense created a paradox in which any attempt to increase democratic participation invariably transfers greater power not to the jury but to one of two unelected officials: the prosecutor or the judge. At the same time, the Court frustrated both Congress's and the Sentencing Commission's ability to reduce sentencing inequities. At the same time the Court was constitutionalizing the burden of proof in criminal trials. Congress and several states were embarking on a campaign to reign in disparities in sentencing. While there was disagreement over both the extent and causes of sentencing disparity, a consensus had arisen that disparities did exist and that they contributed to an appearance of unfairness in the criminal justice system.
ACCESSION #
17774922

 

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