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Articles 31 - 60 of 712
Full-Text Articles in Entire DC Network
The Myth Of The All-Powerful Federal Prosecutor At Sentencing, Adam M. Gershowitz
The Myth Of The All-Powerful Federal Prosecutor At Sentencing, Adam M. Gershowitz
St. John's Law Review
(Excerpt)
Prosecutors are widely considered to be the most powerful actors in the criminal justice system. And federal prosecutors are particularly feared. While some recent scholarship casts doubt on the power of prosecutors, the prevailing wisdom is that prosecutors run the show, with judges falling in line and doing as prosecutors recommend.
This Article does not challenge the proposition that prosecutors are indeed quite powerful, particularly with respect to sentencing. There are many structural advantages built into the system that combine to give prosecutors enormous influence over sentences. For example, prosecutors have considerable power to bring a slew of charges …
Mock Jurors' Recommended Sentences For Perpetrators Who Have Traumatic Experiences, Katherine West
Mock Jurors' Recommended Sentences For Perpetrators Who Have Traumatic Experiences, Katherine West
Electronic Theses and Dissertations
Experiencing trauma can result in neurological and biological changes, precipitating long-term damage to the brain and body. A considerable proportion of incarcerated persons have reported that they have experienced some type of trauma (Stensrud, Gilbride, & Bruinekool, 2018). Using scenarios of hypothetical crimes of varying degrees of seriousness, this study explores whether disclosure of the perpetrator’s traumatic childhood experiences has an influence on the severity of the sentence that mock jurors would recommend for that perpetrator. The mock jurors’ trait empathy, Belief in a Just World, and their own traumatic experiences were assessed to determine whether these characteristics could account …
Brief Of Professor Brandon Hasbrouck As Amicus Curiae In Support Of Appellant: Bell V. Streeval, Brandon Hasbrouck
Brief Of Professor Brandon Hasbrouck As Amicus Curiae In Support Of Appellant: Bell V. Streeval, Brandon Hasbrouck
Scholarly Articles
The core question raised by this case is whether a federal prisoner serving an unconstitutional sentence can be foreclosed from post-conviction habeas relief by the gatekeeping provisions of § 2255. The Constitution answers that question in the negative through the Suspension Clause. “[F]reedom from unlawful restraint [i]s a fundamental precept of liberty,” and the writ of habeas corpus “a vital instrument to secure that freedom.” Boumediene, 553 U.S. at 739. The importance of the common law writ was such that the Framers specified that it could be suspended only in the most exigent circumstances. U.S. Const. art. I, § …
A (Partial And Principled) Defense Of Sentences Of Life Imprisonment, Mirko Bagaric, Jennifer Svilar
A (Partial And Principled) Defense Of Sentences Of Life Imprisonment, Mirko Bagaric, Jennifer Svilar
Cleveland State Law Review
There has been more than a five-fold increase in the number of life sentences in the United States over the past four decades. One in seven prisoners in the United States is serving a life (or virtual) life sentence. This amounts to over 200,000 prisoners. The increase has occurred against the backdrop of near universal condemnation by scholars and public policy advocates – many of whom are now advocating for the abolition of life sentences. Arguments that life sentences are not an effective deterrent or means of protecting the community have some merit. Yet, we argue that in a limited …
White-Collar Crime: Diversity And Discrimination In Sentencing, Rachel Labrie
White-Collar Crime: Diversity And Discrimination In Sentencing, Rachel Labrie
Honors Projects
White-collar crimes cause businesses and individuals to lose billions of dollars a year. This paper discusses the criminal justice system in regard to the white-collar crime and discrimination by the basis of gender and race within sentencing. First an analysis is given on who commits white-collar crimes, by looking at the rates and motives of those committing white-collar crimes on the basis of first gender and race. An analysis through literature review compares sentencing of females and people of color compared with the rates of white males who make up the majority of those committing white-collar crimes. The findings suggest …
Modern Sentencing Mitigation, John B. Meixner Jr.
Modern Sentencing Mitigation, John B. Meixner Jr.
Northwestern University Law Review
Sentencing has become the most important part of a criminal case. Over the past century, criminal trials have given way almost entirely to pleas. Once a case is charged, it almost always ends up at sentencing. And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions. Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence. It is surprising, then, that relatively …
Minimum Sentences, Maximum Suffering: A Proposal To Reform Mandatory Minimum Sentencing, Jordan Ramsey
Minimum Sentences, Maximum Suffering: A Proposal To Reform Mandatory Minimum Sentencing, Jordan Ramsey
Helm's School of Government Conference - 2021-2024
This paper offers several proposals to reform mandatory minimum sentencing laws and asks how we can best uphold Freedom and the Rule of Law within sentencing law.
Examining Legal Financial Obligations In Washington State, Bryan Lewis
Examining Legal Financial Obligations In Washington State, Bryan Lewis
PPPA Paper Prize
After criminal offenders are convicted of a crime, they must return to the court where a judge will determine their sentence. Sentencing often includes jail time, but it always includes monetary penalties, or Legal Financial Obligations (LFOs). There are many reasons these penalties are given, from restitution for the victims of criminal offenses, to providing government revenue and funding the court, to punishment for the offender. However, these fines, and the interest rates that come with them, often leave offenders with an enormous amount of debt. There are a lot of interests at stake when it comes to LFO sentencing …
Federal Sentencing Guidelines: The Continuous Line Between Unwarranted Disparities And Institutional Discretion In Federal Sentencing, Miaya Scott
Research Papers
In 1984, the Federal Sentencing Reform Act was signed into law. This act of reformation set a new standard of mandatory minimum federal sentencing guidelines for anyone who was convicted of an unlawful crime. Under the Federal Sentencing Reform Act, Congress created a new agency, the United States Sentencing Commission. As a bi-partisan, independent agency, the United States Sentencing Commission set the standard of guidelines with the objective to decrease unwarranted disparities within the federal system. Federal Supreme Court cases like United States v Booker overturned federal guidelines moving them mandatory to advisory based on a Sixth Amendment violation. With …
Inside The Black Box Of Prosecutor Discretion, Megan Wright, Shima Baradaran Baughman, Christopher Robertson
Inside The Black Box Of Prosecutor Discretion, Megan Wright, Shima Baradaran Baughman, Christopher Robertson
Faculty Scholarship
In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …
Exploring Factors That Influence Human Trafficking Sentencing Lengths, Brent Blakeman
Exploring Factors That Influence Human Trafficking Sentencing Lengths, Brent Blakeman
FIU Electronic Theses and Dissertations
The area of human trafficking and sentencing research is currently under-explored. Consequently, little foundational knowledge has been established in this area of sentencing research to ensure that sentencing biases do not exist that undermine the tenets of justice. This study produces research and findings that incrementally contribute to building this foundational knowledge on human trafficking and sentencing. It does this by creating and testing a conceptual framework of human trafficking and sentencing that identifies potential predictors of human trafficking sentencing lengths that can be used to identify potential problematic sentencing issues. The model tested in the study includes the following …
“Incorrigibility Is Inconsistent With Youth”: The Supreme Court’S Missed Opportunity To Cure The Contradiction Implicit In Discretionary Jlwop Sentencing, Ana Ionescu
University of Miami Law Review
The juvenile life without parole (“JLWOP”) caselaw is based in part on the science underlying adolescent brain development. Numerous research studies have examined the behaviors and brain processes of adolescents. Courts have relied on these findings in reaching some of its most important decisions affecting juveniles implicated in the criminal justice system. The latest of those decisions came in 2021 with the Jones v. Mississippi case before the United States Supreme Court. The Court held that a sentencing court is not required to make a specific finding of permanent incorrigibility before sentencing the juvenile defendant to life without parole. This …
Can Covid-19 Teach Us How To End Mass Incarceration?, Amy Fettig
Can Covid-19 Teach Us How To End Mass Incarceration?, Amy Fettig
University of Miami Law Review
In this essay, the author argues that federal, state and local government response to the COVID-19 epidemic in prisons and jails was largely incompetent, inhumane, and contrary to sound public health policy, resulting in preventable death and suffering for both incarcerated people and corrections staff. However, the lessons learned from these failures provide a roadmap for policy priorities and legal reform in our ongoing need to decarcerate and end the era of mass incarceration, including: (1) rolling back extreme sentences, recalibrating sentences generally and providing for “second look” mechanisms to those currently serving sentences beyond 10 years; (2) ensuring that …
Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baradaran Baughman, Christopher Robertson
Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baradaran Baughman, Christopher Robertson
Journal Articles
In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …
Drug Supervision, Jacob Schuman
Drug Supervision, Jacob Schuman
Journal Articles
Critics of harsh drug sentencing laws in the United States typically focus on long prison sentences. But the American criminal justice system also inflicts a significant volume of drug-related punishment through community supervision (probation, parole, and supervised release). Over one million people are under supervision due to a drug conviction, and drug activity is among the most common reasons for violations. In an age of “mass supervision,” community supervision is a major form of drug sentencing and drug policy.
In this Article, I analyze the federal system of supervised release as a form of drug policy. Congress created supervised release …
Disparities In The Sentencing Of African American Men In Wayne County, Michigan, Brian Banks
Disparities In The Sentencing Of African American Men In Wayne County, Michigan, Brian Banks
Walden Dissertations and Doctoral Studies
AbstractThe ability of judges in the U.S. criminal justice system to administer penalties based on a defendant’s socioeconomic status has resulted in a disproportionate number of African Americans receiving harsher penalties than those of other racial groups and socioeconomic statuses. Currently, there is little evidence demonstrating the effectiveness of harsher sentencing of defendants with lower socioeconomic statuses in preventing crime or lowering recidivism, but more work is needed to clarify what sentencing factors judges use. The purpose of this qualitative study was to explore the factors that Wayne County, Michigan, judges used during the sentencing process of criminal defendants, along …
Modern Sentencing Mitigation, John B. Meixner Jr.
Modern Sentencing Mitigation, John B. Meixner Jr.
Scholarly Works
Sentencing has become the most important part of a criminal case. Over the past century, criminal trials have given way almost entirely to pleas. Once a case is charged, it almost always ends up at sentencing. And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions. Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence. It is surprising, then, that relatively …
Getting To Death: Race And The Paths Of Capital Cases After Furman, Jeffrey A. Fagan, Garth Davies, Ray Paternoster
Getting To Death: Race And The Paths Of Capital Cases After Furman, Jeffrey A. Fagan, Garth Davies, Ray Paternoster
Faculty Scholarship
Decades of research on the administration of the death penalty have recognized the persistent arbitrariness in its implementation and the racial inequality in the selection of defendants and cases for capital punishment. This Article provides new insights into the combined effects of these two constitutional challenges. We show how these features of post-Furman capital punishment operate at each stage of adjudication, from charging death-eligible cases to plea negotiations to the selection of eligible cases for execution and ultimately to the execution itself, and how their effects combine to sustain the constitutional violations first identified 50 years ago in Furman …
Where Black Lives Matter Less: Understanding The Impact Of Black Victims On Sentencing Outcomes In Texas Capital Murder Cases From 1973 To 2018, Jelani Jefferson Exum, David Niven
Where Black Lives Matter Less: Understanding The Impact Of Black Victims On Sentencing Outcomes In Texas Capital Murder Cases From 1973 To 2018, Jelani Jefferson Exum, David Niven
Saint Louis University Law Journal
The systemic disregard for Black lives in America was on full display when footage of a police officer kneeling on the neck of George Floyd went viral. Mr. Floyd’s resultant death set off protests declaring that Black Lives Matter throughout the nation and across the world. While national attention rightfully turned to demanding police accountability for undue violence, the prevailing conversation also incorporated at least a declared concern for addressing institutionalized racism within the criminal justice system and other American institutions. The term of the day became “antiracism.” With regard to police killings, the lesson is that police officers disproportionately …
A Call To Dismantle Systemic Racism In Criminal Legal Systems, Cynthia J. Najdowski, Margaret C. Stevenson
A Call To Dismantle Systemic Racism In Criminal Legal Systems, Cynthia J. Najdowski, Margaret C. Stevenson
Psychology Faculty Scholarship
Objectives: In October 2021, APA passed a resolution addressing ways psychologists could work to dismantle systemic racism in criminal legal systems. The present report, developed to inform APA’s policy resolution, details the scope of the problem and offers recommendations for policy and psychologists to address the issue by advancing related science and practice. Specifically, it acknowledges the roots of modern-day racial and ethnic disparities in rates of criminalization and punishment for people of color as compared to White people. Next, the report reviews existing theory and research that helps explain the underlying psychological mechanisms driving racial and ethnic disparities …
Criminal Justice Expertise, Benjamin Levin
Criminal Justice Expertise, Benjamin Levin
Scholarship@WashULaw
For decades, commentators have adopted a story of mass incarceration’s rise as caused by “punitive populism.” Growing prison populations, expanding criminal codes, and raced and classed disparities in enforcement result from “pathological politics”: voters and politicians act in a vicious feedback loop, driving more criminal law and punishment. The criminal system’s problems are political. But how should society solve these political problems? Scholars often identify two kinds of approaches: (1) the technocratic, which seeks to wrest power from irrational and punitive voters, replacing electoral politics with agencies and commissions; and (2) the democratic, which treats criminal policy as insufficiently responsive …
Semmy Lasco Kavinga V The People Appeal No 51/2018 (21 August 2019), O'Brien Kaaba
Semmy Lasco Kavinga V The People Appeal No 51/2018 (21 August 2019), O'Brien Kaaba
SAIPAR Case Review
The law on sentencing in Zambia is to a great extent chaotic and in disarray. No clear standards are set by the superior courts to guide lower courts and litigants. Often the sentences are at variance with constitutional norms and there has been no sustained effort to align the law of sentencing with constitutional standards, save for a few cases concerning corporal punishment. Somehow, a judicial culture has evolved and continues to grow of sentencing people without regard for constitutional norms. Yet the constitution is the supreme law, the ultimate source of all law and ought to permeate all laws …
Mandatory Minimum Reforms, Sentencing, And Racial-Ethnic Disparities, Terry Ann Craigie, Mariyana Zapryanova
Mandatory Minimum Reforms, Sentencing, And Racial-Ethnic Disparities, Terry Ann Craigie, Mariyana Zapryanova
Economics: Faculty Publications
Over the last 20 years, numerous states and the federal government enacted mandatory minimum reforms, especially for drug offenses. Yet little is known about how effective these reforms have been at the state-level in lowering drug sentences. Using quasi-experimental methods and administrative data, this study evaluates the impact of state-level mandatory minimum reforms on drug sentences and their concomitant racial-ethnic disparities. We find that state-level mandatory minimum reforms do not lower drug sentences in general or change racial-ethnic disparities statistically significantly. These findings suggest that the profound racial-ethnic bias sparked by state-level mandatory minimums are not fully ameliorated by subsequent …
Less Prison Time Matters: A Roadmap To Reducing The Discriminatory Impact Of The Sentencing System Against African Americans And Indigenous Australians, Mirko Bagaric
Georgia State University Law Review
The criminal justice system discriminates against African Americans. There are a number of stages of the criminal justice process. Sentencing is the sharp end of the system because this is where the community acts in its most coercive manner by intentionally inflecting hardships on offenders. African Americans comprise approximately 40% of the incarcerated population yet only about 13% of the total population. The overrepresentation of African Americans in prisons is repugnant. Despite this, lawmakers for decades have been unable or unwilling to implement reforms which ameliorate the problem. This is no longer politically or socially tolerable in light of the …
Sentencing By Ambush: An Insider's Perspective On Plea Bargaining Reform, Justice Michael P. Donnelly
Sentencing By Ambush: An Insider's Perspective On Plea Bargaining Reform, Justice Michael P. Donnelly
Akron Law Review
The vast majority of cases in our state criminal justice system are resolved not by proceeding to trial but through negotiated plea agreements. These are contracts between the government and the accused in which both sides are negotiating for some form of benefit in the ultimate resolution. In this article, Justice Donnelly exposes what he sees as a flaw in the system in the manner in which trial court judges oversee this process of negotiation. In a significant number of cases, the state induces defendants to enter into a guilty plea with no certain sentence, amounting to an illusory agreement …
After The Crime: Rewarding Offenders’ Positive Post-Offense Conduct, Paul H. Robinson, Muhammad Sarahne
After The Crime: Rewarding Offenders’ Positive Post-Offense Conduct, Paul H. Robinson, Muhammad Sarahne
All Faculty Scholarship
While an offender’s conduct before and during the crime is the traditional focus of criminal law and sentencing rules, an examination of post-offense conduct can also be important in promoting criminal justice goals. After the crime, different offenders make different choices and have different experiences, and those differences can suggest appropriately different treatment by judges, correctional officials, probation and parole supervisors, and other decision-makers in the criminal justice system.
Positive post-offense conduct ought to be acknowledged and rewarded, not only to encourage it but also as a matter of fair and just treatment. This essay describes four kinds of positive …
Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baughman, Christopher Robertson
Inside The Black Box Of Prosecutor Discretion, Megan S. Wright, Shima Baughman, Christopher Robertson
Utah Law Faculty Scholarship
In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …
Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman
Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman
Northwestern Journal of Law & Social Policy
Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, …
Neither Seen Nor Heard: Surviving Children Of Domestic Homicide, Alexis Winfield
Neither Seen Nor Heard: Surviving Children Of Domestic Homicide, Alexis Winfield
Electronic Thesis and Dissertation Repository
Domestic homicide is a critical human rights issue that continues to impact women, children, and families in Canada. Between 2010-2018, 662 individuals died as a result of domestic homicide, many of whom were mothers who left surviving children behind. This study examined the experiences of surviving children prior to, during, and in the aftermath of domestic homicide through quantitative and qualitative court and media document analyses. It was found that 136 children in Ontario experienced domestic homicide between 2010-2017. Domestic homicide impacted surviving children in all domains of functioning and was often associated with long-term adverse outcomes. Court documents revealed …
Discretion And Disparity In Federal Detention, Stephanie Holmes Didwania
Discretion And Disparity In Federal Detention, Stephanie Holmes Didwania
Northwestern University Law Review
The uniquely American phenomenon of mass incarceration plagues the pretrial space. People awaiting trial make up roughly 20% of those held in criminal custody in the United States. Largely overlooked by bail-reform advocates, pretrial detention in the federal criminal system presents a puzzle. The federal system detains defendants at a much higher rate than the states—more than 60% of U.S. citizen-defendants were detained pending trial by federal courts last year. But federal defendants virtually never fail to appear in court, and they are rarely arrested for new crimes while on pretrial release. And unlike state court systems, cash bail is …