Digital Commons Network^™

Sorting Guilty Minds, Owen D. Jones, Francis X. Shen, Morris B. Hoffman, Joshua D. Greene, Rene Marois

Owen Jones

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 …

A Few Criminal Justice Big Data Rules, Stephen E. Henderson

Stephen E Henderson

Drivers Of The Sentenced Population: Probation Analysis, David E. Olson, Donald Stemen, Sema Taheri, Michelle D. Mioduszewski

Don Stemen

The report examines trends in the number and characteristics of felony probation sentences and caseloads in Illinois, as well as short-term outcomes measures for those discharged from felony probation. The research was performed in collaboration with the Administrative Office of the Illinois Courts and the Illinois Sentencing Policy Advisory Council.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Fourteen Years Later: The Capital Punishment System In California, Robert M. Sanger

Robert M. Sanger

How Much Punishment Is Enough?: Embracing Uncertainty In Modern Sentencing Reform, Jalila Jefferson-Bullock

Jalila Jefferson-Bullock

Dividing Crime, Multiplying Punishments, John F. Stinneford

John F. Stinneford

When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will. This Article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and a …

Sentencing And The Salience Of Pain And Hope, Benjamin Berger

Benjamin L. Berger

What would a jurisprudence of sentencing that was induced from the experience of punishment, rather than deduced from the technocracy of criminal justice, look like? Rather than focusing narrowly on the question of quantum, such a jurisprudence would be concerned with the character and quality of punishment. A fit sentence would account for pain, loss, estrangement, alienation, and other features of the offender’s aggregate experience of suffering at the hands of the state in response to his or her wrongdoing. This would be a broader, more resolutely political conception of criminal punishment. This article shows that the jurisprudence of the …

Privately Failing: Recidivism In Public And Private Prisons, Lee N. Gilgan

Lee N Gilgan

This study would add to available research regarding recidivism rates following incarceration in private prisons in contrast to incarceration in government-run prisons. This is a non-experimental meta-analysis viewing numerous studies discussing the effects of multiple covariants within public and private prisons. Based on the information and conclusion in these studies, we find that there is little overall consensus concerning the effects of increased privatization on recidivism. While many studies find certain aspects of privatization to have some potential effect on recidivism, there are many other aspects that either are out of scope or have a negative effect on recidivism. However, …

Dying To Appeal: The Long-Lasting And Ineffective Appeal Process Of The Death Sentence, Marlene Brito

Marlene Brito

The appeal process for death sentences in Florida must be revised to correct the ineffectiveness that is currently in place. The long-lasting procedure allows inmates to indefinitely delay their execution and live via the appeal process for over fifteen years because the statute does not provide a definite time limit. The comment discusses the death penalty in the United States, the jury override law and its consequences, the appeal process itself, and proposes an amendment to section 921.141, Florida Statutes.

Do We Know How To Punish?, Benjamin L. Apt

Benjamin L. Apt

A number of current theories attempt to explain the purpose and need for criminal punishment. All of them depend on some sort of normative basis in justifying why the state may penalize people found guilty of crimes. Yet each of these theories lacks an epistemological foundation; none of them explains how we can know what form punishments should take. The article analyses the epistemological gaps in the predominant theories of punishment: retributivism, including limited-retributivism; and consequentialism in its various versions, ranging from deterrence to the reparative theories such as restorative justice and rehabilitation. It demonstrates that the common putative epistemological …

Sentencing Pregnant Drug Addicts: Why The Child Endangerment Enhancement Is Not Appropriate, Monica Carusello

Monica B Carusello

No abstract provided.

Co-Occurring Substance Use Disorder And Mental Illness In Criminal Offenders, Jayme M. Reisler

Jayme M Reisler

The high rate of comorbid substance use disorder and other mental illness (“dual diagnosis”) poses an enormous obstacle to public policy and sentencing in criminal cases. It is estimated that almost half of all Federal, State, and jail inmates suffer from dual diagnosis – a significantly higher prevalence than in the general population. Yet such inmates lack access to proper and effective treatments for their conditions. Several etiological theories have been put forth to explain the occurrence of dual diagnosis in general. However, virtually no studies have explored possible etiological reasons for the higher prevalence of dual diagnosis specifically in …

Unreasonable Doubt: Warren Hill, Aedpa, And The Unconstitutionality Of Georgia's Reasonable Doubt Standard, Adam Lamparello

Adam Lamparello

Georgia’s “beyond a reasonable doubt” standard for determining intellectual disability has led to an absurd—and arbitrary—result. A Georgia state court held that defendant Warren Hill was intellectually disabled, yet still sentenced Hill to death. Seven experts—and the court—deemed Hill disabled under a preponderance of the evidence standard. He remains on death row, however, because Georgia’s “preposterous burden of proof” requires that intellectual disability be proved beyond a reasonable doubt, a standard experts have said is nearly impossible to satisfy. It “effectively limits the constitutional right protected in Atkins,” and creates a conditional, not categorical, ban.

Co-Occurring Substance Use Disorder And Mental Illness In Criminal Offenders, Jayme M. Reisler

Jayme M Reisler

The high rate of comorbid substance use disorder and other mental illness (“dual diagnosis”) poses an enormous obstacle to public policy and sentencing in criminal cases. It is estimated that almost half of all Federal, State, and jail inmates suffer from dual diagnosis – a significantly higher prevalence than in the general population. Yet such inmates lack access to proper and effective treatments for their conditions. Several etiological theories have been put forth to explain the occurrence of dual diagnosis in general. However, virtually no studies have explored possible etiological reasons for the higher prevalence of dual diagnosis specifically in …

Taking Another Look At Second-Look Sentencing, Meghan J. Ryan

Meghan J. Ryan

An unprecedented number of Americans are currently behind bars. Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform. For example, a bill recently introduced in Congress would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama Administration has announced a plan to grant clemency to hundreds of non-violent drug offenders. Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely that judges be given the power to resentence offenders who have been …

Humane Punishment For Seriously Disordered Offenders: Sentencing Departures And Judicial Control Over Conditions Of Confinement, E. Lea Johnston

E. Lea Johnston

At sentencing, a judge may foresee that an individual with a major mental disorder will experience serious psychological or physical harm in prison. In light of this reality and offenders’ other potential vulnerabilities, a number of jurisdictions currently allow judges to treat undue offender hardship as a mitigating factor at sentencing. In these jurisdictions, vulnerability to harm may militate toward an order of probation or a reduced term of confinement. Since these measures do not affect offenders’ day-to-day experience in confinement, these expressions of mitigation fail to protect adequately those vulnerable offenders who must serve time in prison. This Article …

Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston

E. Lea Johnston

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm …

The Homicide Survivors’ Fairness-For-Victims Manifesto, Lester Jackson

LESTER JACKSON

Murderer advocates place a far greater value on the lives of the most savage murderers than on the lives of their victims. Let them deny it; their words and deeds conclusively give the lie to that denial. The critical question is this: Whose concept of justice is going to prevail? The concept of a small but vocal well-financed minority with influence and power out of all proportion to its numbers, or that of the large but poorly financed and disorganized majority. In recent decades, the former have dominated. Tragically, compared to media-dominant murderer advocates, victims have been virtually voiceless. Yes, …

A Provocative Defense, Aya Gruber

Aya Gruber

It is common wisdom that the provocation defense is, quite simply, sexist. For decades, there has been a trenchant feminist critique that the doctrine reflects and reinforces masculine norms of violence and shelters brutal domestic killers. The critique is so prominent that it appears alongside the doctrine itself in leading criminal law casebooks. The feminist critique of provocation embodies several claims about provocation's problematically gendered nature, including that the defense is steeped in chauvinist history, treats culpable sexist killers too leniently, discriminates against women, and expresses bad messages. This article offers a (likely provocative) defense of the provocation doctrine. While …

Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel Gross, Barbara O'Brien, Chen Hu, Edward Kennedy

Edward H. Kennedy

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to …

"The Sentencing Of Aboriginal Accused With Fasd: A Search For Different Pathways", David Milward

Dr. David Milward

No abstract provided.

Last Words: A Survey And Analysis Of Federal Judges' Views On Allocution In Sentencing, Ira P. Robbins

Ira P. Robbins

Retribution: The Central Aim Of Punishment, Gerard V. Bradley

Gerard V. Bradley

When I worked for the Manhattan District Attorney's Office in the early 1980s, criminal sentences were consistently and dramatically too lenient. Though those years marked the ebb tide for the rehabilitative ideal of punishment and indeterminate "zip-to-ten" sentences, only career felons and those convicted of the most serious crimes were candidates for the sentences they justly deserved. Hamstrung by apparently silly rules of constitutional etiquette and bureaucratic sclerosis, the police were eclipsed in the mind of the public by the cold-blooded Everyman, bound only by the law of the jungle and some elusive sense of justice. Ultimately, popular demand required …

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …

Drivers Of The Sentenced Population: Probation Analysis, David E. Olson, Donald Stemen, Sema Taheri, Michelle D. Mioduszewski

David E. Olson

The report examines trends in the number and characteristics of felony probation sentences and caseloads in Illinois, as well as short-term outcomes measures for those discharged from felony probation. The research was performed in collaboration with the Administrative Office of the Illinois Courts and the Illinois Sentencing Policy Advisory Council.

Victim Impact Evidence: An Analysis On The Effect Of Victim Impact Evidence On The Sentencing Stage In Death-Penalty Cases And Potential Reforms, Kyle W. Kahan

Kyle W Kahan

No abstract provided.

Mercenary Criminal Justice, Ronald F. Wright, Wayne A. Logan

Ronald F. Wright

Lately, a growing number of bill collectors stand in line to collect on the debt that criminals owe to society. Courts order payment of costs; legislatures levy conviction surcharges; even private, for-profit entities get a piece of the action, collecting fees for probation supervision services and the like. And some of these collectors beckon even before a final bill is due, such as prosecutors who require suspects to pay diversion fees before they file any charges.

Government budgetary cutbacks during the Great Recession have led criminal justice actors to rely on legal financial obligations (LFOs) as a source of revenue …

Foreword: A Global Perspective On Sentencing Reforms, Oren Gazal-Ayal

Oren Gazal-Ayal

The articles published in this issue of Law and Contemporary Problems examine the effects of different sentencing reforms across the world. While the effects of sentencing reforms in the United States have been studied extensively, this is the first symposium that examines the effects of sentencing guidelines and alternative policies in a number of western legal systems from a comparative perspective. This issue focuses on how different sentencing policies affect prison population rates, sentence disparity, and the balance of power between the judiciary and prosecutors, while also assessing how sentencing policies respond to temporary punitive surges and moral panics. The …

Do Sentencing Guidelines Increase Prosecutorial Power? An Empirical Study, Oren Gazal-Ayal, Hagit Turjeman, Gideon Fishman

Oren Gazal-Ayal

Traditionally, judges have had tremendous flexibility in sentencing. Offering judges maximum discretion in the sentencing process allows them to consider not only an offender’s criminal history and the severity of the crime committed, but also the complex web of mitigating and aggravating factors present in each case and additional qualitative factors, such as a defendant’s testimony or selfpresentation in a courtroom. When judges are empowered with more discretion, however, there is heightened potential for inter-judge variability in sentencing. In order to reduce sentencing disparities caused by individual sentencers, several countries and jurisdictions, most notably in the United States, have enacted …