Law Commons^™

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

All Faculty Scholarship

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

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

Erik Luna

Not available.

Criminal Law And Procedure, Aaron J. Campbell, Kathleen B. Martin

University of Richmond Law Review

No abstract provided.

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 required …

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 resources, …

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, …

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 general …

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 …

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 the American presidential system. …

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

Pepperdine Law Review

No abstract provided.

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

Pepperdine Law Review

No abstract provided.

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

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 it. …

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 or …

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 …

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 …

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 from adult offenders, …

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

Scholarly Works

Unlike in most areas of the law, federal courts of appeals in the United States defer to trial courts on many issues of sentencing law and policy. As a result, the power to decide sentencing law and policy is often at the discretion of individual district court judges. Law reform scholars have long decried the disparity, lack of transparency, and legitimization concerns that this practice raises. These concerns are heightened in the post-Booker sentencing regime, where the advisory nature of the Federal Sentencing Guidelines undermines those Guidelines’ ability to further sentencing consistency. The deferential approach to federal sentence appeals is …

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 …

Mercenary Criminal Justice, Ronald F. Wright, Wayne A. Logan

Ronald F. Wright

Lately, a growing number of bill collectors stand in line to collect on the debt that criminals owe to society. Courts order payment of costs; legislatures levy conviction surcharges; even private, for-profit entities get a piece of the action, collecting fees for probation supervision services and the like. And some of these collectors beckon even before a final bill is due, such as prosecutors who require suspects to pay diversion fees before they file any charges.

Government budgetary cutbacks during the Great Recession have led criminal justice actors to rely on legal financial obligations (LFOs) as a source of revenue …

Judicial Sentencing Error: Thomas V. Morris And The Double Jeopardy Clause , Paul G. Flynn

Pepperdine Law Review

No abstract provided.

The Constitutionality Of The Federal Sentencing Reform Act After Mistretta V. United States, Charles R. Eskridge Iii

Pepperdine Law Review

No abstract provided.

"Off With His __": Analyzing The Sex Disparity In Chemical Castration Sentences, Zachary Edmonds Oswald

Michigan Journal of Gender & Law

Societies around the world have performed castration, in its various forms, on their male and female members for thousands of years, for numerous reasons. Even within the United States, prisoners have been sentenced to castration (as a form of punishment or crime prevention) since the early twentieth century. In recent years, legislatures have perpetuated this practice but with a modern twist. Now, states use chemical injections to castrate their inmates. It turns out, however, that systemic problems plague the chemical castration sentencing regime. These problems arise from the nature of the crimes eligible for chemical castration sentences, the manner of …

Partially Concurrent Sentences, Statutory Interpretation, And Legislative Intent: Amicus Brief Filed In State V. Bryant Wilson (Indiana Supreme Court), Adam Lamparello, Charles Maclean

Adam Lamparello

Indiana Code § 35-50-1-2 states that terms of imprisonment “shall be served concurrently or consecutively.” The Code’s plain language does not authorize courts to impose partially consecutive, blended, or “split sentences. Partially consecutive sentences would impermissibly read into the Code a third sentencing option, thus contradicting Indiana’s well-settled jurisprudence and undermining the goal of reasonable uniformity in sentencing. The decision of the Indiana Court of Appeals should therefore be reversed.

Foreword: A Global Perspective On Sentencing Reforms, Oren Gazal-Ayal

Oren Gazal-Ayal

The articles published in this issue of Law and Contemporary Problems examine the effects of different sentencing reforms across the world. While the effects of sentencing reforms in the United States have been studied extensively, this is the first symposium that examines the effects of sentencing guidelines and alternative policies in a number of western legal systems from a comparative perspective. This issue focuses on how different sentencing policies affect prison population rates, sentence disparity, and the balance of power between the judiciary and prosecutors, while also assessing how sentencing policies respond to temporary punitive surges and moral panics. The …

Do Sentencing Guidelines Increase Prosecutorial Power? An Empirical Study, Oren Gazal-Ayal, Hagit Turjeman, Gideon Fishman

Oren Gazal-Ayal

Traditionally, judges have had tremendous flexibility in sentencing. Offering judges maximum discretion in the sentencing process allows them to consider not only an offender’s criminal history and the severity of the crime committed, but also the complex web of mitigating and aggravating factors present in each case and additional qualitative factors, such as a defendant’s testimony or selfpresentation in a courtroom. When judges are empowered with more discretion, however, there is heightened potential for inter-judge variability in sentencing. In order to reduce sentencing disparities caused by individual sentencers, several countries and jurisdictions, most notably in the United States, have enacted …

Re-Thinking Minnesota's Criminal Justice Response To Sexual Violence Using A Prevention Lens, Caroline Palmer, Bradley Prowant

Symposium: 50th Anniversary of the Minnesota Criminal Code-Looking Back and Looking Forward

Sexual violence is one of the most difficult issues we face in the human condition. Even with the many strides that have occurred in recent years to support a victim-centered response, survivors who seek help from the legal, medical and mental health systems, among others still “may face disbelief, blame, and refusals of help instead of assistance.” It is a problem that demands a response from all levels of society. And yet this response is lacking.

The key question we as a society confront is what changes will satisfactorily balance justice for victims with offender accountability, attempts at rehabilitation through …