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It is difficult to determine whether due process requires individualized sentencing because sentencing goals and practices have varied greatly during the course of this nation's history. A court applying Judge Bork's original intent doctrine of constitutional interpretation would probably reach a result different from that reached by a court employing a more liberal view of due process protections.1o It is likely that liberals and conservatives on the current Supreme Court would disagree on whether the Guidelines violate due process.

This article argues that the Guidelines can be saved and can satisfy due process requirements if the Supreme Court interprets the Sentencing Reform Act to permit departures from the prescribed sentence ranges in cases in which significant mitigating circumstances are present. Such an approach would have the added benefit of providing judicial feedback on the Guidelines that will be useful in constructing better sentence guidelines in the future.