INTRODUCTION :: Criminal sentencing in the United States has undergone sweeping changes in recent decades. The most significant development in sentencing has been the reallocation of power away from judges and parole boards and towards legislatures. State legislatures have accomplished this reallocation of power by enacting determinate sentencing legislation, such as sentencing guidelines, truth-in-sentencing laws, and the abolition of discretionary parole. Despite these dramatic changes in criminal sentencing, no study has systematically explored the factors leading to this shift. In this Article, we provide the first analysis to explain why state legislatures enact reforms that significantly reduce both judges’ and parole boards’ discretion over criminal sentencing.
Explaining the factors that influence legislatures to enact determinate sentencing reforms is especially important given recent developments in determinate sentencing. Decisions in several recent cases threaten the future of state sentencing guidelines and may presage further significant changes in criminal sentencing in the near future. For example, in its landmark Blakely v. Washington and United States v. Booker decisions, the Supreme Court found both state and federal sentencing guidelines to be unconstitutional under the Sixth Amendment. Although Blakely and Booker found unconstitutional only provisions of the Washington state and federal sentencing systems, scholars agree that the decisions threaten the sentencing systems of many other states. For example, in her Blakely dissent, Justice Sandra Day O’Connor identified nine other states whose sentencing regimes may also be unconstitutional under Blakely. Others have concluded that all but the District of Columbia and three of the twenty-four states with sentencing guidelines or similar sentencing systems are threatened.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital