Reasonableness Review After Booker

Abstract

About a year ago, the Supreme Court in United States v. Booker declared a new standard for the appellate review of federal sentences-reasonableness. Justice Breyer, writing for the Court, asserted reassuringly that the reasonableness standard is not really new at all because judges had been applying it for years to review sentences for crimes lacking specific guidelines, sentences imposed after probation revocation, and, at least until 2003, sentences based upon departures from the recommended guideline range. Like most new legal standards that take shape case-by-case through the appellate process, reasonableness review is developing incrementally, creeping more clearly into view with each passing month. This Essay offers five observations and suggestions about this evolving standard.