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Michael M. O’Hear, The Original Intent of Uniformity in Federal Sentencing, 74 U. Cin. L. Rev. 749 (2006)

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74 University of Cincinnati Law Review 749 (2006)


This Article recounts the rise and evolution of the uniformity ideal in federal sentencing, that is, the notion that similarly situated offenders should be treated similarly, and differently situated offenders differently. The uniformity ideal was championed by many critics of rehabilitative approaches in the 1970s and strongly influenced the adoption of federal sentencing guidelines in the 1980s. However, uniformity has been an unstable concept, with proponents articulating quite different views as to why uniformity is desirable and how it should be implemented. Much of the difficulty stems from the tension between two distinct approaches to uniformity, which are described here as the predictability and purposes paradigms. Under the predictability paradigm, offenders should be distinguished only in ways that can be anticipated well in advance of sentencing. Under the purposes paradigm, sentencing factors are deemed relevant based on their contribution to recognized objectives of sentencing, such as just deserts and rehabilitation. Prior to the Supreme Court's 2005 decision in United States v. Booker, trends in federal sentencing law favored predictability. Booker marks a return to the purposes approach. Additionally, Booker has reinvigorated an important, but much-neglected, aspect of the thinking of uniformity advocates in the 1970s: the view that the sentencing process should embody respect for the dignity of defendants in a manner that is consistent with American ideals of individual liberty and status-equality. Legislative proposals to reverse Booker threaten to undermine this dignitary agenda by enhancing prosecutorial power over defendants.

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