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Sentencing

2013

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Articles 1 - 30 of 57

Full-Text Articles in Law

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas Dec 2013

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

Faculty Scholarship at Penn Law

Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on ...


Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas Dec 2013

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

Michigan Law Review

Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that ...


Judicial Discretion: A Look Back And A Look Forward Five Years After Booker, Erik Luna Nov 2013

Judicial Discretion: A Look Back And A Look Forward Five Years After Booker, Erik Luna

Erik Luna

Not available.


Retribution: The Central Aim Of Punishment, Gerard V. Bradley Oct 2013

Retribution: The Central Aim Of Punishment, Gerard V. Bradley

Gerard V. Bradley

When I worked for the Manhattan District Attorney's Office in the early 1980s, criminal sentences were consistently and dramatically too lenient. Though those years marked the ebb tide for the rehabilitative ideal of punishment and indeterminate "zip-to-ten" sentences, only career felons and those convicted of the most serious crimes were candidates for the sentences they justly deserved. Hamstrung by apparently silly rules of constitutional etiquette and bureaucratic sclerosis, the police were eclipsed in the mind of the public by the cold-blooded Everyman, bound only by the law of the jungle and some elusive sense of justice. Ultimately, popular demand ...


Terms Of Imprisonment: Treating The Noncitizen Offender Equally, Nora V. Demleitner Oct 2013

Terms Of Imprisonment: Treating The Noncitizen Offender Equally, Nora V. Demleitner

Nora V. Demleitner

Not available.


Stopping A Vicious Cycle: Release, Restrictions, Re-Offending, Nora V. Demleitner Oct 2013

Stopping A Vicious Cycle: Release, Restrictions, Re-Offending, Nora V. Demleitner

Nora V. Demleitner

Not available.


Offenses Involving Immigration, Naturalization And Passports: Model Sentencing Guidelines 211, 212, 213, 214, Nora V. Demleitner Oct 2013

Offenses Involving Immigration, Naturalization And Passports: Model Sentencing Guidelines 211, 212, 213, 214, Nora V. Demleitner

Nora V. Demleitner

This article is part of the Model Sentencing Guidelines Working Group's project which is designed to develop a guidelines regime that would simplify the existing federal sentencing guidelines. Among the most frequently used guidelines in today's federal sentencing system are those pertaining to immigration offenses. Some of these guidelines are difficult and cumbersome to apply as the Commission asks courts to use too many sentencing factors, often without distinguishing them in importance. The proliferation of such factors has also restricted the power of federal courts to make their own decisions as to the severity of individual offenses. For ...


Where To Go From Here? The Roberts Court At The Crossroads Of Sentencing, Nora V. Demleitner Oct 2013

Where To Go From Here? The Roberts Court At The Crossroads Of Sentencing, Nora V. Demleitner

Nora V. Demleitner

As the Supreme Court has turned federal sentencing upside down in Booker, it has left a host of open questions in the wake of that decision. The outcome of these questions is often difficult to predict, for lower courts and commentators alike, as the Court has failed to develop an overarching sentencing philosophy to replace the rehabilitation-focused one that animated sentencing for so long. If the Court were to reach consensus on that issue, it would be better able to speak coherently on unresolved sentencing matters. This introduction to an Issue of the Federal Sentencing Reporter highlights some of the ...


Reforming Juvenile Sentencing, Nora V. Demleitner Oct 2013

Reforming Juvenile Sentencing, Nora V. Demleitner

Nora V. Demleitner

Not available.


Constitutional Challenges, Risk-Based Analysis And Criminal History Databases: More Demands On The U.S. Sentencing Commission, Nora V. Demleitner Oct 2013

Constitutional Challenges, Risk-Based Analysis And Criminal History Databases: More Demands On The U.S. Sentencing Commission, Nora V. Demleitner

Nora V. Demleitner

Not available.


Searching For A Solution: How To Punish, Restrain And Treat Sex Offenders, Nora V. Demleitner Oct 2013

Searching For A Solution: How To Punish, Restrain And Treat Sex Offenders, Nora V. Demleitner

Nora V. Demleitner

Not available.


Crime And Sentencing In Canada: Parallels And Differences, Nora V. Demleitner Oct 2013

Crime And Sentencing In Canada: Parallels And Differences, Nora V. Demleitner

Nora V. Demleitner

Not available


Overlooked Areas Of Federal Sentencing: Federal Enclaves, Indian Country, Transfer Of U.S. Prisoners From Abroad, Nora V. Demleitner, Jon M. Sands Oct 2013

Overlooked Areas Of Federal Sentencing: Federal Enclaves, Indian Country, Transfer Of U.S. Prisoners From Abroad, Nora V. Demleitner, Jon M. Sands

Nora V. Demleitner

Not available.


The Federalization Of Crime And Sentencing, Nora V. Demleitner Oct 2013

The Federalization Of Crime And Sentencing, Nora V. Demleitner

Nora V. Demleitner

Not available.


Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim Oct 2013

Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim

Andrew Chongseh Kim

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state ...


Youth Matters: Miller V. Alabama And The Future Of Juvenile Sentencing, John F. Stinneford Oct 2013

Youth Matters: Miller V. Alabama And The Future Of Juvenile Sentencing, John F. Stinneford

UF Law Faculty Publications

In the Supreme Court's latest Eighth Amendment decision, Miller v. Alabama, the Court held that statutes authorizing mandatory sentences of life in prison with no possibility of parole are unconstitutional as applied to offenders who were under eighteen when they committed their crimes. This short essay examines several themes presented in Miller, including the constitutional significance of youth and science, the legitimacy of mandatory life sentences and juvenile transfer statutes, and the conflict between “evolving standards of decency” and the Supreme Court’s “independent judgment.”

This essay also introduces important articles by Richard Frase, Carol Steiker and Jordan Steiker ...


Transforming Juvenile Justice: Making Doctrine Out Of Dicta In Graham V. Florida, Jason Zolle Sep 2013

Transforming Juvenile Justice: Making Doctrine Out Of Dicta In Graham V. Florida, Jason Zolle

Michigan Law Review First Impressions

In the late 1980s and 1990s, many state legislatures radically altered the way that their laws treated children accused of crimes. Responding to what was perceived of as an epidemic of juvenile violence, academics and policymakers began to think of child criminals as a "new breed" of incorrigible "superpredators." States responded by making it easier for prosecutors to try and sentence juveniles as adults, even making it mandatory in some circumstances. Yet in the past decade, the Supreme Court handed down four opinions that limit the states' ability to treat children as adults in the justice system. Roper v. Simmons ...


Retroactivity And Crack Sentencing Reform, Harold J. Krent Sep 2013

Retroactivity And Crack Sentencing Reform, Harold J. Krent

University of Michigan Journal of Law Reform

This Article argues that the strong presumption against retroactive application of reduced punishments articulated in the Supreme Court’s recent decision, Dorsey v. United States, is neither historically grounded nor constitutionally compelled. Although not dispositive in Dorsey, the presumption may mislead legislatures in future contexts, whether addressing marijuana decriminalization or lessened punishment for file sharing, and in no way should signal to Congress that future changes should apply prospectively only. Although the Court reached the right result in applying the reduction in punishment for crack offenses to offenders whose sentences had not been finalized, the Court relied excessively on the ...


An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen Aug 2013

An Anachronism Too Discordant To Be Suffered: A Comparative Study Of Parliamentary And Presidential Approaches To Regulation Of The Death Penalty, Derek R. Verhagen

Derek R VerHagen

It is well-documented that the United States remains the only western democracy to retain the death penalty and finds itself ranked among the world's leading human rights violators in executions per year. However, prior to the Gregg v. Georgia decision in 1976, ending America's first and only moratorium on capital punishment, the U.S. was well in line with the rest of the civilized world in its approach to the death penalty. This Note argues that America's return to the death penalty is based primarily on the differences between classic parliamentary approaches to regulation and that of ...


Victim Impact Evidence: An Analysis On The Effect Of Victim Impact Evidence On The Sentencing Stage In Death-Penalty Cases And Potential Reforms, Kyle W. Kahan Jul 2013

Victim Impact Evidence: An Analysis On The Effect Of Victim Impact Evidence On The Sentencing Stage In Death-Penalty Cases And Potential Reforms, Kyle W. Kahan

Kyle W Kahan

No abstract provided.


Presentence Custody Time Credit Under California Penal Code Section 2900.5, James D. Robinson May 2013

Presentence Custody Time Credit Under California Penal Code Section 2900.5, James D. Robinson

Pepperdine Law Review

No abstract provided.


People V. Olivas: Equalizing The Sentencing Of Youthful Offenders With Adult Maximums, William E. Harris May 2013

People V. Olivas: Equalizing The Sentencing Of Youthful Offenders With Adult Maximums, William E. Harris

Pepperdine Law Review

No abstract provided.


Stay No Longer: California Juvenile Court Sentencing Practices, Sharon O. Lightholder May 2013

Stay No Longer: California Juvenile Court Sentencing Practices, Sharon O. Lightholder

Pepperdine Law Review

No abstract provided.


Humane Punishment For Seriously Disordered Offenders: Sentencing Departures And Judicial Control Over Conditions Of Confinement, E. Lea Johnston May 2013

Humane Punishment For Seriously Disordered Offenders: Sentencing Departures And Judicial Control Over Conditions Of Confinement, E. Lea Johnston

UF Law Faculty Publications

At sentencing, a judge may foresee that an individual with a major mental disorder will experience serious psychological or physical harm in prison. In light of this reality and offenders’ other potential vulnerabilities, a number of jurisdictions currently allow judges to treat undue offender hardship as a mitigating factor at sentencing. In these jurisdictions, vulnerability to harm may militate toward an order of probation or a reduced term of confinement. Since these measures do not affect offenders’ day-to-day experience in confinement, these expressions of mitigation fail to protect adequately those vulnerable offenders who must serve time in prison. This Article ...


Battering The Poor: How Georgia’S Mandatory Family Violence Classes Deny Indigent Defendants Equal Protection Of The Law, Whitney Scherck Apr 2013

Battering The Poor: How Georgia’S Mandatory Family Violence Classes Deny Indigent Defendants Equal Protection Of The Law, Whitney Scherck

Whitney Scherck

Thirty years ago, the U.S. Supreme Court in Bearden v. Georgia held that the Equal Protection Clause of the Fourteenth Amendment prevents a court from incarcerating an individual for failure to pay a fine unless it first inquires into their reasons for failing to do so and determines that the defendant willfully failed to make bona fide efforts to pay. However, recently, a new kind of legal debt has emerged. As states’ budgets tighten, so-called user fees are becoming an increasingly common way for legislatures to toughen the criminal justice system without having to come up with funding for ...


Psychopathy And Sentencing: An Investigative Look Into When The Pcl-R Is Admitted Into Canadian Courtrooms And How A Pcl-R Score Affects Sentencing Outcome, Katie Davey Apr 2013

Psychopathy And Sentencing: An Investigative Look Into When The Pcl-R Is Admitted Into Canadian Courtrooms And How A Pcl-R Score Affects Sentencing Outcome, Katie Davey

Electronic Thesis and Dissertation Repository

Little is known about how and when the Psychopathy Checklist Revised (PCL-R) is being introduced into Canadian Courts or how it affects sentencing outcomes. Using the Lexis-Nexis Quicklaw Academic Database to retrieve judge’s sentencing decisions, all 274 cases with PCL-R information for Canadian courts were included in this study. It was hypothesized correctly that PCL-R information would most often be introduced in Long Term Offender (LTO) and Dangerous Offender (DO) applications as well as sentencing cases for murderers and sex offenders. The 274 cases were then reduced to 37 cases in order to focus on sentencing without Dangerous Offender ...


What The Sentencing Commission Ought To Be Doing Reducing Mass Incarceration, Lynn Adelman Apr 2013

What The Sentencing Commission Ought To Be Doing Reducing Mass Incarceration, Lynn Adelman

Michigan Journal of Race and Law

Beginning in the 1970s, the United States embarked on a shift in its penal policies, tripling the percentage of convicted felons sentenced to confinement and doubling the length of their sentences. This shift included a dramatic increase in the prosecution and incarceration of drug offenders. As a result of its move toward long prison sentences, the United States now incarcerates so many people that it has become an outlier; this is not just among developed democracies, but among all nations, including highly punitive states such as Russia and South Africa, and also in comparison to the United States' own long-standing ...


Reducing Incarceration For Youthful Offenders With A Developmental Approach To Sentencing, Samantha Buckingham Apr 2013

Reducing Incarceration For Youthful Offenders With A Developmental Approach To Sentencing, Samantha Buckingham

Loyola of Los Angeles Law Review

Current sentencing practices have proven to be an ineffective method of rehabilitating criminal defendants. Such practices are unresponsive to developmental science breakthroughs, fail to promote rehabilitation, and drain society’s limited resources. These deficiencies are most acute when dealing with youthful offenders. Incarcerating youthful offenders, who are amenable to rehabilitative efforts, under current sentencing practices only serves to ensure such individuals will never become productive members of society. Drawing on the author’s experiences as a federal public defender, studies in developmental psychology and neuroscience, and the Supreme Court’s recent line of cases that acknowledge youthful offenders’ biological differences ...


Federal Incarceration By Contract In A Post-Minneci World: Legislation To Equalize The Constitutional Rights Of Prisoners, Allison L. Waks Apr 2013

Federal Incarceration By Contract In A Post-Minneci World: Legislation To Equalize The Constitutional Rights Of Prisoners, Allison L. Waks

University of Michigan Journal of Law Reform

In the 2012 case Minneci v. Pollard, the United States Supreme Court held that federal prisoners assigned to privately-run prisons may not bring actions for violations of their Eighth Amendment right against cruel and unusual punishment and may instead bring actions sounding only in state tort law. A consequence of this decision is that the arbitrary assignment of some federal prisoners to privately-run prisons deprives them of an equal opportunity to vindicate this federal constitutional right and pursue a federal remedy. Yet all federal prisoners should be entitled to the same protection under the United States Constitution-regardless of the type ...


Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston Mar 2013

Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston

UF Law Faculty Publications

This Article analyzes risks of serious harms posed to prisoners with major mental disorders and investigates their import for sentencing under a just deserts analysis. Drawing upon social science research, the Article first establishes that offenders with serious mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience psychological deterioration during their carceral terms. The Article then explores the significance of this differential impact for sentencing within a retributive framework. It first suggests a particular expressive understanding of punishment, capacious enough to encompass foreseeable, substantial risks of serious harm ...