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Sentencing Guidelines at the Crossroads of Politics and Expertise

When Minnesota created the first sentencing commission in 1978
and the first sentencing guidelines in 1980, it was hard to predict
where the guidelines movement would go. More than three decades

and twenty sentencing guideline regimes later, it is still not easy to
foresee what will become of sentencing commissions and guidelines.
The past decade alone has witnessed tremendous changes in sentencing law and policy that were hard to imagine even just a few years before they occurred. The Supreme Court’s landmark sentencing

decisions in Apprendi v. New Jersey, Blakely v. Washington, and United

States v. Booker, the reform of federal crack cocaine laws, and a financial crisis that has sparked significant sentencing reforms have all been
monumental and, to some extent, unexpected developments. These
seismic shifts will undoubtedly alter the landscape going forward in
similarly unpredictable ways.

As this Symposium looks to the future and what it holds for sentencing guidelines, it is important to proceed with caution and a
healthy dose of modesty. None of us really knows what will happen.
But one helpful way to approach the future is to reflect on some of
the key lessons we have learned in the more than thirty years with
sentencing commissions and guidelines. There have been consistent
themes and struggles, and there is no reason to believe these core issues will dissipate going forward. In this Article, I highlight these
struggles and analyze how they can productively guide the future of
sentencing guidelines.