양형기준설정과 관련된 몇 가지 고려사항

In the United States of America, disparity in sentencing, certainty of punishment, and crime control have long been issues of interest for Congress, the criminal justice community, and the public. Consequently, Congress created a permanent commission charged with formulating national sentencing guidelines to define the parameters for federal trial judges to follow in their sentencing decisions. The resulting sentencing guidelines went into effect November 1, 1987. Shortly after implementation of the guidelines, defendants began challenging the constitutionality of the Sentencing Reform Act on the basis of improper legislative delegation and violation of the separation of powers doctrine. The U.S. Supreme Court rejected these challenges on January 18, 1989, in Mistretta v. United States and upheld the constitutionality of the Commission as a judicial branch agency. Since nationwide implementation in January 1989, federal judges have sentenced more than 700,000 defendants under the guidelines. In January of 2005, the U.S. Supreme Court decided United States v. Booker, 125 S. Ct. 738 (2005). The Booker decision addressed the question left unsolved by the Court’s decision in blakely v. Washington, 124 S. Ct. 2531 (2004): whether the Sixth Amendment right to jury trial applies to the federal sentencing guidelines. In its substantive opinion, the Court held that the Sixth Amendment applies to the sentencing guidelines. In its remedial opinion, the Court serve and excised two statutory provisions, 18 U.S.C. § 3553 (b) (1), which made the federal guidelines mandatory, and 18 U.S.C. § 3742 (e), an appeals provision. The Court also reaffirmed the constitutionality of the Commission and maintained all of the Sentencing Commission's statutory obligations under the Sentencing Reform Act. When the korean sentencing commission establishes sentencing guidelines, it has to consider the experience of the United States of America. In this viewpoint, the korean sentencing commission has to meditate on principle of sentencing, empirical and normative approach to extracting concrete sentencing elements, progress of criminal law amendment, capacity of correctional institution etcetera.