Law Commons^™

Criminal Law—The Federal Sentencing Guidelines: Examining The Physical Restraint Sentencing Enhancement, Drew Curtis

University of Arkansas at Little Rock Law Review

No abstract provided.

United States V. Herman, Tyler Wilkerson

NYLS Law Review

No abstract provided.

Contemplating The Successive Prosecution Phenomenon In The Federal System, Elizabeth T. Lear

Elizabeth T Lear

Constitutional scholars have long debated the relative merits of a conduct-based compulsory joinder rule. The dialogue has centered on the meaning of the “same offence” language of the Double Jeopardy Clause, concentrating specifically on whether it includes the factual circumstances giving rise to criminal liability or applies only to the statutory offenses charged. However, the Supreme Court, in United States v. Dixon, abandoned as “unworkable” a limited conduct-based approach it had fashioned just three years before in Grady v. Corbin.

This Article does not assess the frequency with which federal authorities prosecute joinable offenses separately. While such information ultimately is …

Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level With Michael Heise, Frank O. Bowman Iii, Michael Heise

Michael Heise

This is the second of two articles in which we seek an explanation for the hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations declined by more than 15% between 1991-92 and 2000.

Double Jeopardy, The Federal Sentencing Guidelines, And The Subsequent-Prosecution Dilemma, Elizabeth T. Lear

Elizabeth T Lear

The choice to embrace a real-offense regime probably constitutes the single most controversial decision made by the Federal Sentencing Commission in drafting the Federal Sentencing Guidelines ("Guidelines"). Real-offense sentencing bases punishment on a defendant's actual conduct as opposed to the offense of conviction. The Guidelines sweep a variety of factors into the sentencing inquiry, including criminal offenses for which no conviction has been obtained. Under the Guidelines, therefore, prosecutorial charging decisions and even verdicts of acquittal after jury trial may have little impact at sentencing.

Long before the adoption of the Guidelines, courts bent on rationalizing the real-offense regime devised …

Sentence Appeals In England: Promoting Consistent Sentencing Through Robust Appellate Review, Briana Lynn Rosenbaum

The Journal of Appellate Practice and Process

No abstract provided.

Criminal Procedure Decisions From The October 2007 Term, Susan N. Herman

Touro Law Review

No abstract provided.

When "Reasonableness" Is Not So Reasonable: The Need To Restore Clarity To The Appellate Review Of Federal Sentencing Decisions After Rita, Gall, And Kimbrough, Craig D. Rust

Touro Law Review

No abstract provided.

Editor's Observations: It's Alive! The Federal Booker-Fix Debate Sirs, Frank O. Bowman Iii

Faculty Publications

Seven years have passed since Justice Ginsburg do-si-doed from the merits majority to the remedial majority in Booker and transformed the Federal Sentencing Guidelines into an advisory system.' And despite the logical absurdity of the Scalian Sixth Amendment doctrine that produced this outcome,' and despite the expectation of folks like me that this marriage of fish and fowl could not long survive, it survives. What is more, a great many people whose opinion matters now claim to love it-or at least to like it well enough to want to keep it for the foreseeable future. Thus, the outburst of legislative …

Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii

Faculty Publications

This is an introductory essay to Volume 23, Number 2, of the FEDERAL SENTENCING REPORTER, which considers the state of American criminal justice policy in 2010, two years after the "Change" election of 2008. Part I of the essay paints a statistical picture of trends in federal criminal practice and sentencing over the last half-decade or so, with particular emphasis on sentence severity and the degree of regional and inter-judge sentencing disparity. The statistics suggest that the expectation that the 2005 Booker decision would produce a substantial increase in the exercise of judicial sentencing discretion and a progressive abandonment of …

The Model Federal Sentencing Guidelines Project: Departures, Model Sentencing Guidelines §5.1, Frank O. Bowman Iii

Faculty Publications

This Article is the twelfth of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines, available on SSRN at http://ssrn.com/abstract=927929. This segment of the project contains rules governing the imposition of sentences …

The Model Federal Sentencing Guidelines Project: A Simplified Economic Crimes Guideline, Model Sentencing Guidelines §2b1.1, Frank O. Bowman Iii

Faculty Publications

This Article is the third of twelve parts of a set of Model Federal Sentencing Guidelines designed to illustrate the feasibility and advantages of a simplified approach to federal sentencing proposed by the Constitution Project Sentencing Initiative. The Model Sentencing Guidelines and the Constitution Project report are all to be published in Volume 18, Number 5 of the Federal Sentencing Reporter. The project is described in an essay titled 'Tis a Gift To Be Simple: A Model Reform of the Federal Sentencing Guidelines, available on SSRN at http://ssrn.com/abstract=927929.

The Year Of Jubilee Or Maybe Not: Some Preliminary Observations About The Operation Of The Federal Sentencing System After Booker, Frank O. Bowman Iii

Faculty Publications

This segment of the project contains the offense seriousness portion of the simplified sentencing table employed in the Model Sentencing Guidelines. The Article also contains drafter's commentary explaining the offense seriousness scale of the table, how it interacts with other portions of the Model Guidelines, and the policy choices behind the simplified table.

"Reasonably Predictable:" The Reluctance To Embrace Judicial Discretion For Substantial Assistance Procedures, India Geronimo Thusi

Articles by Maurer Faculty

This Comment focuses on the nuances of post-Booker cooperation departures and sentence variances. Section 5K1.1 of the Guidelines governs the provision of cooperation, or substantial assistance, departures. This provision was the primary method for defendants to receive cooperation departures prior to Booker. The section 5K1.1 provision allowed substantial assistance departures where the prosecution actually benefited from the defendant’s cooperation.

First, Part I.A of this Comment will provide an overview of the original goals of the Sentencing Commission and the section 5K1.1 substantial assistance provision. Part I.B of the Comment summarizes United States v. Booker and its impact on cooperation departures. …

Beyond Bandaids: A Proposal For Reconfiguring Federal Sentencing After Booker, Frank O. Bowman Iii

Faculty Publications

This Article proposes a simplified sentencing table consisting of nine base sentencing ranges, each subdivided into three sub-ranges. The base sentencing range would be determined by combining offense facts found by a jury or admitted in a plea with the defendant's criminal history. A defendant's placement in the sub-ranges would be determined by post-conviction judicial findings of sentencing factors. No upward departures from the base sentencing range would be permissible, but defendants might be sentenced below the low end of the base sentencing range as a result of an acceptance of responsibility credit or due to a downward departure motion. …

The Forgotten Constitutional Right To Present A Defense And Its Impact On The Acceptance Of Responsibility-Entrapment Debate, Katrice L. Bridges

Michigan Law Review

This Note argues that Section 3El.1 of the Federal Sentencing Guidelines must be interpreted to allow defendants who claim entrapment at trial to remain eligible for the acceptance-of-responsibility adjustment. To interpret Section 3El.1 in any other way would run afoul of defendants' constitutional right to present a defense. Part I argues that the entrapment defense does not put factual guilt at issue; instead the entrapment defense challenges whether the statute should apply to the defendant's conduct. Part II contends that the legislative intent in creating the sentencing guidelines in general and the acceptance-of-responsibility adjustment in particular are furthered by requiring …

Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii

Faculty Publications

This Article is, in effect, the second half of the author's argument against the Supreme Court's interpretation of the Sixth Amendment in Blakely v. Washington. The first half appeared in "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington," 41 American Criminal Law Review 217 (2004), and made a pragmatic, consequentialist argument against the Blakely result. This Article takes the next step of providing an alternative constitutional model of criminal sentencing to that offered by Justice Scalia in Blakely. The model emphasizes that a good constitutional model should pay particular …

The Sky Is Not Falling—That Which You Feel Is Merely A No. 10 Earthquake—Blakely V. Washington: The Supreme Court Sentences The American Criminal Justice System To Disaster, Bedlam, And Reform, Christopher P. Carrington

University of Arkansas at Little Rock Law Review

No abstract provided.

Beyond Blakely, Nancy J. King, Susan Riva Klein

Vanderbilt Law School Faculty Publications

Federal criminal sentencing in the wake of Blakely v. Washington is, to put it charitably, a mess. In holding that Blakely's sentence under the Washington State Sentencing Guidelines was imposed in a manner inconsistent with the Sixth Amendment right to a jury trial, the decision threatens the operation of the Federal Sentencing Guidelines and the presumptive sentencing systems in fourteen states. In Parts I and II of this article, we address how Blakely has affected the Federal Sentencing Guidelines, and how assistant U.S. attorneys, federal public defenders, and district and appellate court judges might proceed in a post-Blakely world. In …

Quiet Rebellion Ii: An Empirical Analysis Of Declining Federal Drug Sentences Including Data From The District Level With Michael Heise, Frank O. Bowman Iii, Michael Heise

Faculty Publications

This is the second of two articles in which we seek an explanation for the hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations declined by more than 15% between 1991-92 and 2000.

The Pathological Politics Of Criminal Law, William J. Stuntz

Michigan Law Review

Substantive criminal law defines the conduct that the state punishes. Or does it? If the answer is yes, it should be possible, by reading criminal codes (perhaps with a few case annotations thrown in), to tell what conduct will land you in prison. Most discussions of criminal law, whether in law reviews, law school classrooms, or the popular press, proceed on the premise that the answer is yes. Law reform movements regularly seek to broaden or narrow the scope of some set of criminal liability rules, always on the assumption that by doing so they will broaden or narrow the …

Judicial Abuse Of "Process": Examining The Applicability Of Section 2f1.1(B)(4)(B) Of The Federal Sentencing Guidelines To Bankruptcy Fraud, Hideaki Sano

Michigan Law Review

The proliferation of bankruptcy filings over the past decade has coincided with a comparable increase in the incidence of bankruptcy fraud. In response to this growing problem, the United States Department of Justice has placed greater emphasis on federal prosecution of bankruptcy fraud. As a result, federal judges are increasingly applying the Federal Sentencing Guidelines ("Guidelines") to bankruptcy fraud and have begun to implement uniform standards for sentencing defendants convicted of this crime. Congress enacted the Guidelines pursuant to the Sentencing Reform Act of 1984. In instituting the Guidelines, Congress sought honesty, reasonable uniformity, and proportionality in sentencing. Congress attempted …

Fact-Bargaining: An American Phenomenon, William T. Pizzi

Publications

No abstract provided.

Contemplating The Successive Prosecution Phenomenon In The Federal System, Elizabeth T. Lear

UF Law Faculty Publications

Constitutional scholars have long debated the relative merits of a conduct-based compulsory joinder rule. The dialogue has centered on the meaning of the “same offence” language of the Double Jeopardy Clause, concentrating specifically on whether it includes the factual circumstances giving rise to criminal liability or applies only to the statutory offenses charged. However, the Supreme Court, in United States v. Dixon, abandoned as “unworkable” a limited conduct-based approach it had fashioned just three years before in Grady v. Corbin.

This Article does not assess the frequency with which federal authorities prosecute joinable offenses separately. While such information ultimately is …

Double Jeopardy, The Federal Sentencing Guidelines, And The Subsequent-Prosecution Dilemma, Elizabeth T. Lear

UF Law Faculty Publications

The choice to embrace a real-offense regime probably constitutes the single most controversial decision made by the Federal Sentencing Commission in drafting the Federal Sentencing Guidelines ("Guidelines"). Real-offense sentencing bases punishment on a defendant's actual conduct as opposed to the offense of conviction. The Guidelines sweep a variety of factors into the sentencing inquiry, including criminal offenses for which no conviction has been obtained. Under the Guidelines, therefore, prosecutorial charging decisions and even verdicts of acquittal after jury trial may have little impact at sentencing.

Long before the adoption of the Guidelines, courts bent on rationalizing the real-offense regime devised …

Felony-Murder Doctrine Through The Federal Looking Glass, Henry S. Noyes

Indiana Law Journal

No abstract provided.

Foreword: Structuring Sentencing Discretion: The New Federal Sentencing Guidelines, Ilene H. Nagel

Articles by Maurer Faculty

No abstract provided.

The Federal Sentencing Guidelines: Miracle Cure For Sentencing Disparity, Kathryn A. Walton

Kentucky Law Journal

No abstract provided.

Negotiated Pleas Under The Federal Sentencing Guidelines: The First Fifteen Months, Ilene H. Nagel, Stephen J. Schulhofer

Articles by Maurer Faculty

No abstract provided.