Judge Gertner on Sentencing After Gall and Kimbrough
There is both promise and danger in the Supreme Court's recent decisions in Gall v. United States, 128 S. Ct. 586 (2007) and Kimbrough v. United States, 128 S. Ct. 558 (2007). The promise is clear: finally, courts will be allowed to focus on all the purposes of sentencing in the Sentencing Reform Act, rather than being fixated on just the goal of avoiding sentencing disparity. Finally, courts can stop being concerned solely with the question: am I doing the same thing as what the judge in the next courtroom is doing, even if neither of us is making any sense? Finally, common law judges can be real participants in sentencing and develop a common law of sentencing. Finally, judges can work to generate a new set of sentencing precedents rather than simply ceding all decisions to the U.S. Sentencing Commission. The language in the Gall and Kimbrough decisions, not to mention their holdings, sound new themes in sentencing not heard of in appellate decisions since the dawn of the Guidelines era.
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