Law Commons^™

30 = 20: ‘Understanding’ Maximum Sentence Enhancements, Frank R. Herrmann S.J.

Frank R. Herrmann, S.J.

In this article, Professor Herrmann argues that the due process protections of a criminal trial should apply to aggravating factors that under current “maximum-enhancing statutes” allow judges to impose lengthier punishments in the sentencing phase. Part I considers the Supreme Court's rationale for refusing to apply full due process safeguards to all types of sentencing schemes. This background will reveal the unique quality of maximum-enhancing statutes and establish why the due process protections of a criminal trial should apply to sentencing under maximum-enhancing statutes. Part I, therefore, undertakes to explain courts' rationales to deny criminal defendants full criminal due process …

Information Sharing In A Common Law Of Sentencing: A Skeptic's Guide, Ryan W. Scott

Ryan W. Scott

For decades, prominent scholars and judges have called for the development of a “common law of sentencing” in the United States. One strand of scholarship stresses the information sharing function of the common law: sentencing judges need access to a body of written opinions that reveals how other courts have handled similar cases. The idea is that, fueled by better information, case-by-case common law reasoning will promote inter-judge consistency and rationality in sentencing law. This Article takes a skeptical view, identifying three sets of challenges for an information-sharing approach. First, there are daunting information-collection challenges. A healthy common law depends …

Tough On Crime (On The State's Dime): How Violent Crime Does Not Drive California Counties’ Incarceration Rates—And Why It Should

W. David Ball

California’s prisons are dangerously and unconstitutionally overcrowded; as a result of the Supreme Court’s recent decision in Plata v. Schwarzenegger, the state must act to reduce its prison population or face court-ordered prisoner releases. The state’s plans to reduce overcrowding are centered around what it calls criminal justice “realignment”, whereby California will send a portion of the state prison population to county facilities. The plan faces opposition from county officials, who see it as pushing the state’s problem on to the counties.

But what if state prison overcrowding is really a county problem? I argue that state prison overcrowding is …

Follow The Evidence: Integrate Risk Assessment Into Sentencing, Steven Chanenson, Jordan Hyatt, Maerk Bergstrom

Steven L. Chanenson

No abstract provided.

Philadelphia Lawyers: Policing The Law In Pennsylvania, Brian K. Pinaire, Milton Heumann, Christian Scarlett

Brian K. Pinaire

Unlike other professions within the Commonwealth, Pennsylvania attorneys “police” themselves, meaning that ethical infractions and ramifications of criminal convictions are addressed not by the government, but rather by disciplinary entities within the profession. Recent socio-legal and social science research has addressed the various statutory “collateral consequences” that attach to criminal convictions, but we know comparatively little about consequential discipline instituted outside the purview of the state. Based on an examination of 419 disciplinary dispositions from 2005-2009, as well as interviews with elites, this study provides the first-ever examination of the process and legal-political implications of peer-policing of the law in …

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

David C. Gray

How central should hedonic adaptation be to the establishment of sentencing policy? In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

The Eleventh Circuit's Selective Assault On Sentencing Discretion, Adam Shajnfeld

Adam Shajnfeld

Ever since the Supreme Court declared that the sentences which district courts impose on criminal defendants are to be reviewed on appeal for “unreasonableness,” the standard’s contours have remained elusive and mired in controversy, despite the Court’s repeated attempts at elucidation. In few instances is this confounding state of affairs more apparent and acute than in the Eleventh Circuit’s recent lengthy and factious en banc decision in United States v. Irey. This article explores Irey’s merits, mistakes, and lessons, trying to locate each within the broader context of the Eleventh Circuit’s sentencing jurisprudence. In doing so, the article advances three …

"Terror Among The Gum Trees" - Is Our Criminal Legal Framework Adequate To Curb The Peril Of Bushfire Arson In Australia, John L. Anderson

John L Anderson

No abstract provided.

Rethinking Proportionality Under The Cruel And Unusual Punishments Clause, John F. Stinneford

John F. Stinneford

Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered the claim that proportionality review is illegitimate in light of the Eighth Amendment’s original meaning. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and selfcontradictory. As a result, a controlling plurality of the Court has insisted that proportionality review be limited to a narrow class of cases. This …

Criminal Forfeiture Procedure In 2011: An Annual Survey Of Developments In The Case Law, Stefan D. Cassella

Stefan D Cassella

This is another in a series of articles on developments in the federal case law relating to criminal forfeiture procedure. It covers the cases decided in 2010. Like the earlier articles in this series, this one does not attempt to discuss every topic related to criminal forfeiture, but covers those matters on which there was a significant development in the case law in the past year, or a significant change in the rules or statutes governing criminal forfeiture procedure.