We are at a notable moment to contemplate federal sentencing. Fifteen years ago, the Supreme Court issued its landmark decision in United States v. Booker . Just over 25 years ago, Congress passed and the President signed the 1994 Crime Bill. By looking backward and learning from history, we may be able to move forward more productively. One remarkable aspect of Booker is that it still controls federal sentencing a decade and a half later. Congress has chosen to largely leave the system as the Court refashioned it. The world is different today than it was in 2005. Yet the Booker framework – established by two essentially dueling 5-4 majorities of the Supreme Court – endures. In some ways, the most remarkable aspect of Booker at 15 is how unremarkable it appears to contemporary eyes. It is the dog that doesn’t bark – at least not much. In order to truly benefit from the lessons of our criminal justice history, we must go beyond guidelines. Just over 25 years ago, Congress spoke forcefully in the 1994 Crime Bill. It was addressing the concerns of that era with tactics that garnered wide support at the time but are not always viewed favorably today. By stopping to explore the context and consequences of two of the most significant judicial and legislative criminal justice events of the last quarter-century, lessons may emerge. That is a good thing. If we are to make mistakes again (and we will), they should be new ones. Only by understanding the past can we effectively illuminate the path forward.

Ten years after the Supreme Court issued its Blakely decision, American sentencing law and policy feel very different. In 2004, many believed modern sentencing systems were destined always to be on a legislatively driven, inexorable march to ever-greater severity. A decade later, sentencing remains the center of a vigorous debate about what we want from our criminal justice system and even who we are as a society, but the terms of the debate now largely revolve around how much to lower prison terms rather than how much to raise them. This essay highlights the continued constitutional fallout from Blakely , and the current policy debates that have come to define modern sentencing systems.