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Principles Of Risk Assessment: Sentencing And Policing, Christopher Slobogin
Principles Of Risk Assessment: Sentencing And Policing, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Risk assessment — measuring an individual’s potential for offending — has long been an important aspect of criminal justice, especially in connection with sentencing, pretrial detention and police decision-making. To aid in the risk assessment inquiry, a number of states have recently begun relying on statistically-derived algorithms called “risk assessment instruments” (RAIs). RAIs are generally thought to be more accurate than the type of seat-of-the-pants risk assessment in which judges, parole boards and police officers have traditionally engaged. But RAIs bring with them their own set of controversies. In recognition of these concerns, this brief paper proposes three principles — …
The Invisible Revolution In Plea Bargaining: Managerial Judging And Judicial Participation In Negotiations, Nancy J. King, Ronald F. Wright
The Invisible Revolution In Plea Bargaining: Managerial Judging And Judicial Participation In Negotiations, Nancy J. King, Ronald F. Wright
Vanderbilt Law School Faculty Publications
This Article, the most comprehensive study ofjudicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly one hundred judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured best practices for docket management. We learned of grant-funded problem-solving sessions complete with risk assessments and real-time information on treatment options; multicase conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation …
Once A Criminal? Regulating The Use Of Prior Convictions In Sentencing, Nancy J. King
Once A Criminal? Regulating The Use Of Prior Convictions In Sentencing, Nancy J. King
Vanderbilt Law School Faculty Publications
On November 18, 2013, Nancy J. King, the Lee S. and Charles A. Speir Professor at Vanderbilt Law School, delivered Marquette Law School’s annual George and Margaret Barrock Lecture in Criminal Law. This is an abridgment of that lecture. A longer, essay version appears in the spring 2014 issue of the Marquette Law Review.
Alleyne On The Ground: Factfinding That Limits Eligibility For Probation Or Parole Release, Nancy J. King, Brynn E. Applebaum
Alleyne On The Ground: Factfinding That Limits Eligibility For Probation Or Parole Release, Nancy J. King, Brynn E. Applebaum
Vanderbilt Law School Faculty Publications
This article addresses the impact of Alleyne v. United States on statutes that restrict an offender’s eligibility for release on parole or probation. Alleyne is the latest of several Supreme Court decisions applying the rule announced in the Court’s 2000 ruling, Apprendi v. New Jersey. To apply Alleyne, courts must for the first time determine what constitutes a minimum sentence and when that minimum is mandatory. These questions have proven particularly challenging in states that authorize indeterminate sentences, when statutes that delay the timing of eligibility for release are keyed to judicial findings at sentencing. The same questions also arise, …
Putting Desert In Its Place, Christopher Slobogin, Lauren Brinkley-Rubinstein
Putting Desert In Its Place, Christopher Slobogin, Lauren Brinkley-Rubinstein
Vanderbilt Law School Faculty Publications
Based on an impressive array of studies, Paul Robinson and his coauthors have developed a new theory of criminal justice, which they call empirical desert. The theory asserts that, because people are more likely to be compliant with a legal regime that is perceived to be morally credible, a criminal justice system that tracks empirically derived lay views about how much punishment is deserved is the most efficient way of achieving utilitarian goals, or at least is as efficient at crime prevention as a system that focuses solely on deterrence and incapacitation. This Article describes seven original studies that test …
Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin
Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin
Vanderbilt Law School Faculty Publications
Among modern-day legal academics determinate sentencing and limiting retributivism tend to be preferred over indeterminate sentencing, at least in part because the latter option is viewed as immoral. This Article contends to the contrary that, properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so. More specifically, the position defended in this Article is that, once a person is convicted of such an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within very broad ranges set by the …
The Origins Of Back-End Sentencing In California: A Dispatch From The Archives, Sara Mayeux
The Origins Of Back-End Sentencing In California: A Dispatch From The Archives, Sara Mayeux
Vanderbilt Law School Faculty Publications
In recent years, policy analysts have generated a small body of literature about the practice of "back-end sentencing," observing that California uses parole revocation in lieu of criminal prosecution for a surprisingly high number of cases, including many that would otherwise be considered serious crimes. Some of these offenders may be getting away with far shorter sentences than if their conduct were prosecuted criminally. Surely others are being railroaded into serving time for charges of which they could never be convicted beyond a reasonable doubt. And many are being cycled in and out of prison on fairly minor violations for …
Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois
Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois
Vanderbilt Law School Faculty Publications
Because punishable guilt requires that bad thoughts accompany bad acts, the Model Penal Code (MPC) typically requires that jurors infer the past mental state of a criminal defendant. More specifically, jurors must sort that mental state into one of four specific categories - purposeful, knowing, reckless, or negligent - which in turn defines the nature of the crime and the extent of the punishment. The MPC therefore assumes that ordinary people naturally sort mental states into these four categories with a high degree of accuracy, or at least can reliably do so when properly instructed. It also assumes that ordinary …
Habeas Corpus And State Sentencing Reform: A Story Of Unintended Consequences, Nancy J. King, Suzanna Sherry
Habeas Corpus And State Sentencing Reform: A Story Of Unintended Consequences, Nancy J. King, Suzanna Sherry
Vanderbilt Law School Faculty Publications
This Article tells the story of how fundamental shifts in state sentencing policy collided with fundamental shifts in federal habeas policy to produce a tangled and costly doctrinal wreck. The conventional assumption is that state prisoners seeking habeas relief allege constitutional errors in their state court convictions and sentences. But almost 20 percent of federal habeas petitions filed by noncapital state prisoners do not challenge state court judgments. They instead attack administrative actions by state prison officials or parole boards, actions taken long after the petitioner's conviction and sentencing. Challenges to these administrative decisions create serious problems for federal habeas …
The Civilization Of The Criminal Law, Christopher Slobogin
The Civilization Of The Criminal Law, Christopher Slobogin
Vanderbilt Law School Faculty Publications
This article explores the jurisprudential and practical feasibility of a "preventive" regime of criminal justice. More specifically, it examines an updated version of the type of government intervention espoused four decades ago by thinkers such as Barbara Wooton, Sheldon Glueck, and Karl Menninger. These individuals, the first a criminologist, the latter two mental health professionals, envisioned a system that is triggered by an antisocial act but that pays no attention to desert or even to general deterrence. Rather, the sole goal of the system they proposed is individual prevention through assessments of dangerousness and the provision of treatment designed to …
Judicial Oversight Of Negotiated Sentences In A World Of Bargained Punishment, Nancy J. King
Judicial Oversight Of Negotiated Sentences In A World Of Bargained Punishment, Nancy J. King
Vanderbilt Law School Faculty Publications
Prosecutors control statutory ranges by selecting charges. In addition, prosecutors decide whether to use or forego special sentencing statutes that carry mandatory minimum penalties higher than the maximum Guidelines sentence that would otherwise apply to the defendant's conduct, as well as statutes that authorize a sentence lower than the minimum Guidelines sentence that would otherwise apply ("safety valve," "substantial assistance," and Rule 35 reductions). By creating these additional provisions and then removing any effective judicial oversight of their application, Congress has expanded the opportunities for prosecutors to decide when to opt out of the national Guidelines and when to abide …