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Michael M. O’Hear, The Duty to Avoid Disparity: Implementing 18 U.S.C. § 3553(a)(6) After Booker, 37 McGeorge L. Rev. 627 (2006)

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37 McGeorge Law Review 627 (2006)


Since passage of the Sentence Reform Act of 1984 ("SRA"), 18 U.S.C. Section 3553(a)(6) has required sentencing judges in federal court to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." At the same time, the SRA also required judges to adhere in most cases to the Federal Sentencing Guidelines, leaving (a)(6) with little independent significance. In January 2005, however, the Supreme Court ruled in United States v. Booker that the Guidelines could no longer be treated as mandatory. Since then, numerous sentencing judges have invoked (a)(6) in a variety of different circumstances to justify non-Guidelines sentences. This Article surveys the cases, examines the origins and purposes of (a)(6), and proposes a new analytical framework for judges to use when implementing the provision. Under this approach, (a)(6) would require that a sentencing judge consider the average actual sentence imposed in past cases involving a similar offense of conviction, and expressly justify any deviation from this empirical norm.

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