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11 Stan. L. & Pol'y Rev. 93 (1999-2000)
A Common Law for This Age of Federal Sentencing: The Opportunity and Need for Judicial Lawmaking

handle is hein.journals/stanlp11 and id is 97 raw text is: A Common Law For This Age of Federal Sentencing: The Opportunity and Need For Judicial Lawmaking by Douglas A. Berman Not long ago, the Sentencing Reform Act (SRA)' made sweeping changes to a federal sentencing process which, in Congress' view, had become arbitrary and capricious and unfair both to offenders and to the public.2 But, barely a decade since the SRA's reforms became effective,3 many judges, lawyers and scholars contend that federal sentencing laws and practices are now as bad as, or even worse than, ever.4 Even vocal supporters of modem reforms readily [lit remains critically important for federal judges to embrace their opportunities to actively cultivate a common law of sentencing. acknowledge that the federal sentencing system is far from perfect.5 Meanwhile, sky-rocketing incarceration rates reveal that the federal system has led the way in fighting crime with more time. Taking stock of these developments, most commentators have focused upon the work of Congress and the Sentencing Commission in developing federal sentencing law. But of critical import in assessing the federal system's struggles is the role--or, more accurately, the absence of a proper role-of the federal judiciary in the federal sentencing system. Put simply, since the passage of the SRA, federal judges have not effectively helped develop the rules which govern federal sentencing; they have been involved in sentencing, but largely uninvolved in sentencing lawmaking. Douglas A. Berman is an Assistant Professor ofLaw at The Ohio State University College of Law. Professor Berman is an editor of the Federal Sentencing Reporter (U. Cal. Press). He received his J.D. from Harvard Law School in 1993 and his A.B. from Princeton University in 1990. * Many of the disappointments in federal sentencing reform, as well as the federal system's tendency to fight crime with more time, can be traced to the failure of the federal judiciary to be actively involved in sentencing lawmaking.6 The limited role played by judges in the evolution of federal sentencing law is especially ironic in the wake of the SRA's passage and the advent of the Federal Sentencing Guidelines. The SRA and the guideline sentencing model actually establish an extremely sound institutional structure for sentencing reform which provides for a significant judicial role in federal sentencing lawmaking. Compounding the irony is the fact that responsibility for the insignificant judicial role in federal sentencing lawmaking rests significantly with the federal judiciary itself. While federal judges have been among the most active critics of the SRA and the Federal Sentencing Guidelines, they have been passive in their sentencing decision-making under the Guidelines. Under the SRA, the federal judiciary has considerable power to develop a meaningful common law of sentencing and thereby shape the content and direction of federal sentencing law. Indeed, federal judges have opportunities in every sentencing case to contribute their insights and wisdom to the development of the rules governing federal sentencing policy and practice. But federal judges have largely failed to make effective use of the means through which they can contribute to the development of federal sentencing law. VOLUME 11:1 1999

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