Digital Commons Network^™

The Punishment Need Not Fit The Crime: Harmelin V. Michigan And The Eigth Amendment, Scott K. Petersen

Pepperdine Law Review

No abstract provided.

Indigenous Community Participation In The Sentencing Of Criminal Offenders: Circle Sentencing, Luke Mcnamara

Luke McNamara

Recently the New South Wales Aboriginal Justice Advisory Committee (‘AJAC’) released a discussion paper titled Circle Sentencing: Involving Aboriginal Communities in the Sentencing Process. The paper proposed that ‘circle sentencing’—a community-based sentence determination procedure which originated in Canadian Indigenous communities—be trialled in selected Aboriginal communities in New South Wales. Almost 10 years after the release of the final report of the Royal Commission into Aboriginal Deaths in Custody the need for alternatives to the conventional processes of criminal justice administration in Indigenous communities is as great as ever. Therefore, practical initiatives such as the AJAC proposal for a circle sentencing …

Appellate Court Scrutiny Of Circle Sentencing, Luke Mcnamara

Luke McNamara

One of the most significant features of circle sentencing as developed in Canada in recent years is the central role of the judiciary. That is, in cooperation with First Nations communities, judges, rather than legislators or justice department bureaucrats, have been responsible for the adoption of circle sentencing as a recognized process in Canadian criminal justice. Luke Mcnamara reviews the manner in which provincial and territorial appellate courts have responded to the emergence of circle sentencing gin their respective jurisdictions. His aim is to illuminate the actual and potential impact of appellate court scrutiny of circle sentencing. Toward this end, …

The Label Of Life Imprisonment In Australia: A Principled Or Populist Approach To An Ultimate Sentence, John L. Anderson

John L Anderson

No abstract provided.

Criminal Law And Procedure, Aaron J. Campbell, Kathleen B. Martin

University of Richmond Law Review

This article aims to give the criminal law practitioner a succinct review of significant cases regarding criminal law and procedure decided by the Supreme Court of Virginia and the Court ofAppeals of Virginia during the past year. The authors have focused their discussion of the cases on cogent points found in the holdings. The article also briefly summarizes recent legislative enactments pertaining to criminal law.

Fast-Track Sentencing: A Potential Solution To The Divisive Discretion, Elizabeth Weber

Missouri Law Review

This Summary examines the current federal sentencing regime, the establishment of fast-track programs, and the resulting circuit split regarding whether a judge can grant a defendant a more lenient sentence based on the lack of availability of a fast-track option in that jurisdiction. Further, it discusses more recent developments regarding the circuit split and how the new DOJ policy purports to resolve the issue. Finally, this Summary argues that while this change does solve the sentencing disparity problem, it conflicts with the congressional policy underlying the official sanction of fast-track programs.

Incompetent Plea Bargaining And Extrajudicial Reforms, Stephanos Bibas

All Faculty Scholarship

Last year, in Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Supreme Court held that incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. This commentary, published as part of the Harvard Law Review’s Supreme Court issue, analyzes both decisions. The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. Belatedly, the Court noticed …

What Goes Around Comes Around-Nichols V. United States: Validating The Collateral Use Of Uncounseled Misdemeanor Convictions For The Purpose Of Sentence Enhancement, Andrea E. Joseph

Pepperdine Law Review

No abstract provided.

Law Enforcement And Criminal Law Decisions, Erwin Chemerinsky

Pepperdine Law Review

No abstract provided.

What One Hand Giveth, The Other Taketh Away: How Future Dangerousness Corrupts Guilt Verdicts And Produces Premature Punishment Decisions In Capital Cases, Elizabeth S. Vartkessian

Pace Law Review

No abstract provided.

Punishment Without Conviction: Controlling The Use Of Unconvicted Conduct In Federal Sentencing, Gerald F. Leonard, Christine Dieter

Faculty Scholarship

Federal sentencing law is widely applied to punish offenders not only for the offenses of which they have been convicted, but also, in the same proceeding, for offenses of which they have not been convicted. Unlike many scholars, we accept that federal courts can, in the right circumstances, legitimately enhance sentences for facts and conduct found at sentencing, even when those facts and conduct constitute uncharged offenses or even charges on which the defendant actually won an acquittal. But we argue that in identifiable cases, the use of such sentencing facts does cross the line from appropriate contextualization of the …

Death Ineligibility And Habeas Corpus, Lee B. Kovarsky

Lee Kovarsky

I examine the interaction between what I call 'death ineligibility' challenges and the habeas writ. A death ineligibility claim alleges that a criminally-confined capital prisoner belongs to a category of offenders for which the Eighth Amendment forbids execution. By contrast, a 'crime innocence' claim alleges that, colloquially speaking, a capital prisoner 'wasn’t there, and didn’t do it.' In the last eight years, the Supreme Court has identified several new ineligibility categories, including mentally retarded offenders. Configured primarily to address crime innocence and procedural challenges, however, modern habeas law is poorly equipped to accommodate ineligibility claims. Death Ineligibility traces the genesis …

The Mandatory Meaning Of Miller, William W. Berry Iii

William W Berry III

In June 2012, the United States Supreme Court held in Miller v. Alabama that the imposition of mandatory life-without-parole sentences on juveniles violated the Eighth Amendment’s ban on “cruel and unusual” punishment. This case continued the Supreme Court’s slow but steady expansion of the scope of the Eighth Amendment over the past decade. In light of the Court’s decision in Miller to preclude mandatory sentences of life without parole for juveniles, this article explores the possibility of further expansion of the Eighth Amendment to proscribe other kinds of mandatory sentences. Applying the approach of the Court in Miller to other …

Harmelin's Faulty Originalism, Michael J.Z. Mannheimer

Michael J.Z. Mannheimer

In Harmelin v. Michigan, in 1991, Justice Scalia, writing only for himself and Chief Justice Rehnquist, set forth the claim that the Cruel and Unusual Punishments Clause, as understood in 1791, did not require proportionality in sentencing. Instead, he argued, it was understood at that time as addressing only certain methods of punishment. Twenty-one years later, the plurality opinion in Harmelin remains the foundation for conservative originalist arguments against the notion that the Clause forbids disproportionate punishment. It has continued to be cited by its adherents, Justices Scalia and Thomas, as recently as the last week of the October 2011 …

The Debate On Whether Life Sentences Should Be Considered: Will Missouri's Proportionality Review Remain Meaningful, Alexandra E. Wilson-Schoone

Missouri Law Review

This Law Summary will address the Supreme Court of Missouri's proportionality review jurisprudence, the rationales of two opinions in Deck," and the relationship of the Deck opinions to precedent and public policy. Additionally, this Summary will address the court's subsequent application of and debate about proportionality review as well as the legislative response. Finally, this Summary will conclude that for proportionality review to serve a meaningful function, the court must consider all affirmed, factually similar capital cases that resulted in either life imprisonment or a death sentence because only considering factually similar cases which resulted in the death penalty essentially …

Life Without Parole Under Modern Theories Of Punishment, Paul H. Robinson

All Faculty Scholarship

Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done …

A Multilevel Analysis Of County And State Variation In The Severity Of Sentences Imposed In Large Urban Courts, Kimberly Helen Martin

Dissertations

This study explored the structural sources behind variability in the sentences applied to felons convicted in state courts located across the U.S. Multilevel regression models were used to explore whether various state and county-level attributes help to account for why defendants experience a significantly higher probability of incarceration versus probation in certain jurisdictions. Drawing upon a broad theoretical landscape, the analyses test several hypotheses derived from macro level theories of social control which predict that that the legal and organizational culture of courts, and the socioeconomic and political attributes of the communities they serve, influence sentencing outcomes. This study sought …

Apprendi V. New Jersey, The Scaling Back Of The Sentencing Factor Revolution And The Resurrection Of Criminal Defendant Rights, How Far Is Too Far?, Analisa Swan

Pepperdine Law Review

No abstract provided.

Cost As A Sentencing Factor: A Response, Jeff Milyo

Missouri Law Review

Professor Chad Flanders offers a normative theoretical critique of including costs of punishment in Sentence Advisory Reports (SARs) that the Missouri Sentencing Advisory Commission (MOSAC) produces. This approach provides a useful lens for understanding divergent opinions on the practice of including cost information in SARs and provides a consistent logical framework for understanding whether this practice squares with more fundamental principles of criminal punishment. In this Response, I complement the normative analysis in the main Article with several observations from a different analytical perspective. As an empirical social scientist, my analytical approach is based on positive analysis. I am less …

Cost As A Sentencing Factor: Missouri's Experiment, Chad Flanders

Missouri Law Review

This argument is avowedly theoretical and normative. That is, this Article tries to determine what judges ought to do, not what they in fact do. Judges and attorneys may argue cost at sentencing hearings, and many of them do. That does not mean that they should be debating cost or basing sentencing decisions on it. I also am not concerned about whether, pragmatically, letting judges figure cost into their decisions might be a good thing overall, because it might lead to lower sentences. I put these concerns to one side, important as they may be as a practical matter. Instead, …

Breakthrough Science And The New Rehabilitation, Meghan J. Ryan

Meghan J. Ryan

Breakthroughs in pharmacology, genetics, and neuroscience are transforming how society views criminals and thus how society should respond to criminal behavior. Although the criminal law has long been based on notions of culpability, science is undercutting the assumption that offenders are actually responsible for their criminal actions. Further, scientific advances have suggested that criminals can be changed at the biochemical level. The public has become well aware of these advances largely due to pervasive media reporting on these issues and also as a result of the pharmaceutical industry’s incessant advertising of products designed to transform individuals by treating everything from …

The Skeptic's Guide To Information Sharing At Sentencing, Ryan W. Scott

Ryan W. Scott

The “information sharing” model, a leading method of structuring judicial discretion at the sentencing stage of criminal cases, has attracted broad support from scholars and judges. Under this approach, sentencing judges should have access to a robust body of information, including written opinions and statistics, about previous sentences in similar cases. Armed with that information, judges can conform their sentences to those of their colleagues or identify principled reasons for distinguishing them, reducing inter-judge disparity and promoting rationality in sentencing law. This Article takes a skeptical view, arguing that information sharing suffers from three fundamental weaknesses as an alternative to …

Cruel And Unusual Federal Punishments, Michael Mannheimer

Michael J.Z. Mannheimer

Virtually all federal defendants who have challenged their sentences as “cruel and unusual punishment” in violation of the Eighth Amendment have failed. This is because the Supreme Court’s jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes. This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the Cruel and Unusual Punishments Clause have addressed state, not federal, sentencing practices. Thus, they have addressed the Eighth Amendment only as incorporated by the Fourteenth. Federal courts accordingly find themselves …

Cruel And Unusual Federal Punishments, Michael J.Z. Mannheimer

Michael J.Z. Mannheimer

Virtually all federal defendants who have challenged their sentences as “cruel and unusual punishment” in violation of the Eighth Amendment have failed. This is because the Supreme Court’s jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes. This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the Cruel and Unusual Punishments Clause have addressed state, not federal, sentencing practices. Thus, they have addressed the Eighth Amendment only as incorporated by the Fourteenth. Federal courts accordingly find themselves …

Criminal Sanctions In The Defense Of The Innocent, Ehud Guttel, Doron Teichman

Michigan Law Review

Under the formal rules of criminal procedure, fact finders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that fact finders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof that fact finders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments-a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated …

Cruel And Unusual Punishment: Adult Prison For Florida's Children, Mary E. Day

Mary E. Day

The manuscript addresses whether Florida law comports with the recent Supreme Court of the United States holding in Graham v. Florida that sentencing a nonhomicide juvenile offender to life without parole constitutes cruel and unusual punishment since such a punishment lacks opportunities for the youth to rehabilitate and reform. The manuscript asserts that consequently, Florida laws allowing for the direct filing of juvenile offenders such that they are subject to incarceration in adult prisons will not likely withstand a constitutional challenge as long as Florida's juveniles are denied opportunities for reform.

The Penalties For Piracy: An Empirical Study Of National Prosecution Of International Crime, Eugene Kontorovich

Faculty Working Papers

This Article examines the sentences imposed by courts around the world in prosecutions of Somali pirates captured on the high seas. Somali piracy has become perhaps the highest-volume area of international criminal law by national courts. As with other international crimes, international law is silent on the subject of penalties. The large number of parallel prosecutions of offenders from a single international "situation" offers an empirical window into the interactions between international and national law in municipal courts; into factors affecting punishment for international crimes and the hierarchy of international offenses; and of course into potential concerns with the current …

Pain, Love, And Voice: The Role Of Domestic Violence Victims In Sentencing, Hadar Dancig-Rosenberg, Dana Pugach

Michigan Journal of Gender & Law

Criminal law systems throughout the world have evolved to a stage where they no longer ask, "What is the appropriate role of the victim in a criminal trial?" The questions now relate to the scope of the victim's rights, in which procedures she has independent standing, and at what stage she should be heard. The process of the "prosecution stepping into the victim's shoes," whereby the state controls the entire criminal process, seemingly on behalf of the victim, has been replaced by the recognition that the interests of the prosecution (the State) are not always consistent with those of the …

Follow The Leader: The Advisability And Propriety Of Considering Cost And Recidivism Data At Sentencing, Lynn S. Branham

All Faculty Scholarship

The Missouri Sentencing Advisory Commission has begun to provide judges with information that enables them, before imposing a sentence, to compare the financial costs of several different sentencing options and the recidivism risks they pose. Although this initiative has sparked controversy, I, for one, favor taking steps like this one to help extricate us from the “same ole, same ole” sentencing box in which uninformed, and sometimes misinformed, sentencing decision making is the norm.

This article provides an overview of six of the primary reasons why providing judges some very basic facts about the financial cost of several sentencing options …

Innocence And Federal Habeas After Aedpa: Time For The Supreme Court To Act, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.