Law Commons^™

Submission Letter To The Nsw Sentencing Council, David Brown, Julia Quilter

David C. Brown

Re: Bail - Additional show cause offences We refer to the Attorney General's request for the Sentencing Council to consider a proposal to make amendments to the Bail Act 2013 (NSW) ('the 2013 Act') and specifically the Terms of Reference regarding the addition to the categories of offences for which the accused must 'show cause' before bail may be granted. The specific addition under consideration is with respect to an accused charged with a serious indictable offence committed: • while subject to a good behaviour bond, intervention program order, intensive correction order; • while serving a sentence in the community; …

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 Trends For Economic Crime, Robert Sanger

Robert M. Sanger

Economic crime is something that intersects with the work of many practitioners, whether corporate counsel, business lawyers, civil litigators, estate planners, or family lawyers. As many know, the United States Sentencing Guidelines (“Guidelines”) have treated economic crimes with stiff guideline sentences. When the amount of intended loss rises, the sentences accelerate to the level of being extremely harsh. The United States Sentencing Commission has just published the results of their study of sentencing for economic crimes as applied in practice.The Guidelines have been declared to be advisory by the United States Supreme Court in United States v. Booker, 543 U.S. …

Mercy By The Numbers: An Empirical Analysis Of Clemency And Its Structure, Michael Heise

Michael Heise

Clemency is an extrajudicial measure intended both to enhance fairness in the administration of justice, and allow for the correction of mistakes. Perhaps nowhere are these goals more important than in the death penalty context. The recent increased use of the death penalty and concurrent decline in the number of defendants removed from death row through clemency call for a better and deeper understanding of clemency authority and its application. Questions about whether clemency decisions are consistently and fairly distributed are particularly apt. This study uses 27 years of death penalty and clemency data to explore the influence of defendant …

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 …

Criminal Forfeiture Procedure In 2015: 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 2014 and early 2015.

Like the earlier articles in this series, this one does not attempt to address every topic related to criminal forfeiture, nor all of the exceptions and nuances that apply to the topics that are addressed; rather, it covers only those matters on which there was a significant development in the case law in the past year. Thus a basic familiarity with federal criminal forfeiture procedure is assumed.

The Article begins …