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Discretion Without Guidance, William W. Berry Iii
Discretion Without Guidance, William W. Berry Iii
William W Berry III
The exercise of the discretion accorded to a judge in determining the sentence of a convicted criminal offender bears directly on the coherence and the legitimacy of any criminal justice system. The United States federal criminal sentencing system has, at various points in time over the past century, employed schemes that have approached either the one extreme of unfettered judicial discretion or the other extreme of highly restricted judicial discretion. In January, 2005, the United States Supreme Court held in United States v. Booker that the mandatory federal sentencing guidelines, the source of the strict restriction on judicial discretion for …
American Procedural Exceptionalism, William W. Berry Iii
American Procedural Exceptionalism, William W. Berry Iii
William W Berry III
This article offers a new theory to explain the persistence of the death penalty in the United States at a time when most western nations have abolished it. Contrary to cultural explanations that have been advanced by other scholars, this piece hypothesizes that the retention is best explained by "American procedural exceptionalism," defined as the unique American belief in the efficacy and fairness of its legal process. This American exceptionalism of process validates the expression of the impulse toward retribution commonly found in western nations. In other words, the perceived fairness of the process affirms the retributive notion that the …