Revenge of Mullaney v. Wilbur: United States v. Booker and the Reassertion of Judicial Limits on Legislative Power to Define Crimes, The

Abstract

This article offers a historically grounded account of the twists and turns in the Supreme Court\u27s sentencing jurisprudence from the end of World War II to the Court\u27s stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court\u27s effort to respond to the changing political and social landscape of crime in America. In the mid 1970\u27s, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave it to legislators who did not seem disposed to exercise their authority too broadly. By the late 1990\u27s the tide had shifted and the Court turned sentencing doctrine on its head to take power over criminal law from legislative bodies inclined to push the limits of their power and transfer it back to a newly cautious judiciary. This article explores how that shift in power was informed by changing social and political conditions and was accomplished through doctrines regulating the Sixth Amendment right to trial