Open Access. Powered by Scholars. Published by Universities.®

Criminology Commons

Open Access. Powered by Scholars. Published by Universities.®

Sentencing

Discipline
Institution
Publication Year
Publication
Publication Type
File Type

Articles 1 - 24 of 24

Full-Text Articles in Criminology

What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas Jan 2016

What's Wrong With Sentencing Equality?, Richard A. Bierschbach, Stephanos Bibas

Faculty Scholarship

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended ...


Justice: 1850s San Francisco And The California Gold Rush, Paul H. Robinson, Sarah M. Robinson Jan 2015

Justice: 1850s San Francisco And The California Gold Rush, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship

Using stories from the 1848-1851 California gold miners, the 1851 San Francisco vigilante committees, Nazi concentration camps of the 1940s, and wagon trains of American westward migration in the 1840s, the chapter illustrates that it is part of human nature to see doing justice as a value in itself—in people’s minds it is not dependent for justification on the practical benefits it brings. Having justice done is sufficiently important to people that they willingly suffer enormous costs to obtain it, even when they were neither hurt by the wrong nor in a position to benefit from punishing the ...


Punishment: Drop City And The Utopian Communes, Paul H. Robinson, Sarah M. Robinson Jan 2015

Punishment: Drop City And The Utopian Communes, Paul H. Robinson, Sarah M. Robinson

Faculty Scholarship

Using stories from the utopian non-punishment hippie communes of the late 1960's, the essay challenges today’s anti-punishment movement by demonstrating that the benefits of cooperative action are available only with the adoption of a system for punishing violations of core rules. Rather than being an evil system anathema to right-thinking people, punishment is the lynchpin of the cooperative action that has created human success.

This is Chapter 3 from the general audience book Pirates, Prisoners, and Lepers: Lessons from Life Outside the Law. Chapter 4 of the book is also available on SSRN at http://papers.ssrn.com ...


Humane Punishment For Seriously Disordered Offenders: Sentencing Departures And Judicial Control Over Conditions Of Confinement, E. Lea Johnston Oct 2014

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

E. Lea Johnston

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 ...


Vulnerability And Just Desert: A Theory Of Sentencing And Mental Illness, E. Lea Johnston Oct 2014

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

E. Lea Johnston

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 ...


Is Burglary A Violent Crime? An Empirical Investigation Of Classifying Burglary As A Violent Felony And Its Statutory Implications, Phillip Kopp Oct 2014

Is Burglary A Violent Crime? An Empirical Investigation Of Classifying Burglary As A Violent Felony And Its Statutory Implications, Phillip Kopp

All Dissertations, Theses, and Capstone Projects

Under the common law, burglary is defined as a crime committed against the property of another, and is listed as a property offense for purposes of statistical description by the Uniform Crime Reports (UCR) and the National Crime Victimization Survey (NCVS). However, burglary is prosecuted and sentenced as a violent crime under habitual offender laws at the federal level, and can be regarded as violent in state law, depending on varied circumstances. Using a mixed methods approach, the current study compared state and federal burglary and habitual offender statutes to an empirical description of the offense. First, a comprehensive content ...


Commentary: Reflections On Remorse, Stephen J. Morse Jan 2014

Commentary: Reflections On Remorse, Stephen J. Morse

Faculty Scholarship

This commentary on Zhong et al. begins by addressing the definition of remorse. It then primarily focuses on the relation between remorse and various justifications for punishment commonly accepted in Anglo-American jurisprudence and suggests that remorse cannot be used in a principled way in sentencing. It examines whether forensic psychiatrists have special expertise in evaluating remorse and concludes that they do not. The final section is a pessimistic meditation on sentencing disparities, which is a striking finding of Zhong et al.


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

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

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 ...


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 ...


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 ...


"Life Without Parole" Under Modern Theories Of Punishment, Paul H. Robinson Jun 2012

"Life Without Parole" Under Modern Theories Of Punishment, Paul H. Robinson

Faculty Scholarship

Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done ...


The Machinery Of Criminal Justice, Stephanos Bibas Jan 2012

The Machinery Of Criminal Justice, Stephanos Bibas

Faculty Scholarship

Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased ...


Comments On [Israeli] Proposal For Structuring Judicial Discretion In Sentencing, Paul H. Robinson Mar 2011

Comments On [Israeli] Proposal For Structuring Judicial Discretion In Sentencing, Paul H. Robinson

Faculty Scholarship

In this essay, Professor Robinson supports the current Israeli proposal for structuring judicial discretion in sentencing, in particular its reliance upon desert as the guiding principle for the distribution of punishment, its reliance upon benchmarks, or “starting-points,” to be adjusted in individual cases by reference to articulated mitigating and aggravating circumstances, and the proposal’s suggestion to use of an expert committee to draft the original guidelines.


Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse Jan 2011

Gene-Environment Interactions, Criminal Responsibility, And Sentencing, Stephen J. Morse

Faculty Scholarship

This chapter in, Gene-Environment Interactions in Developmental Psychopathology (K. Dodge & M. Rutter, eds. 2011), considers the relevance of GxE to criminal responsibility and sentencing. It begins with a number of preliminary assumptions that will inform the analysis. It then turns to the law’s view of the person, including the law’s implicit psychology, and the criteria for criminal responsibility. A few false starts or distractions about responsibility are disposed of briefly. With this necessary background in place, the chapter then turns specifically to the relation between GxE and criminal responsibility. It suggests that GxE causes of criminal behavior have ...


Racial/Ethnic Threat And Federal Sentencing, Ben Feldmeyer, Jeffery Ulmer Dec 2010

Racial/Ethnic Threat And Federal Sentencing, Ben Feldmeyer, Jeffery Ulmer

Ben Feldmeyer

This study examines whether federal sentencing decisions are influenced by the racial/ethnic composition of federal court districts. Multilevel models of individual cases within federal judicial districts show that Black defendants receive moderately longer sentences than Whites, and that Hispanics and Whites receive similar sentences. These race/ethnicity effects on sentence length are found to vary across federal districts but not as predicted by racial threat theory. In contrast to racial threat predictions, Black sentence lengths are not significantly conditioned by the district Black population. Contrary to racial threat predictions, Hispanic defendants receive the harshest sentences when they account for ...


The Eleventh Circuit's Selective Assault On Sentencing Discretion, Adam Shajnfeld Dec 2010

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 ...


Do Judges Vary In Their Treatment Of Race?, David S. Abrams, Marianne Bertrand, Sendhil Mullainathan Sep 2010

Do Judges Vary In Their Treatment Of Race?, David S. Abrams, Marianne Bertrand, Sendhil Mullainathan

Faculty Scholarship

Are minorities treated differently by the legal system? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges differ from each other in how they sentence minorities, avoiding potential bias from unobservable case characteristics by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants. We perform a Monte Carlo simulation in order to explicitly construct the appropriate counterfactual, where race does not influence judicial sentencing. In our data set ...


Documentation, Documentary, And The Law: What Should Be Made Of Victim Impact Videos?, Regina Austin Jan 2010

Documentation, Documentary, And The Law: What Should Be Made Of Victim Impact Videos?, Regina Austin

Faculty Scholarship

Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim. Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding ...


Lost In Translation?: An Essay On Law And Neuroscience, Stephen J. Morse Jan 2010

Lost In Translation?: An Essay On Law And Neuroscience, Stephen J. Morse

Faculty Scholarship

The rapid expansion in neuroscientific research fuelled by the advent of functional magnetic resonance imaging [fMRI] has been accompanied by popular and scholarly commentary suggesting that neuroscience may substantially alter, and perhaps will even revolutionize, both law and morality. This essay, a contribution to, Law and Neuroscience (M. Freeman, Ed. 2011), will attempt to put such claims in perspective and to consider how properly to think about the relation between law and neuroscience. The overarching thesis is that neuroscience may indeed make some contributions to legal doctrine, practice and theory, but such contributions will be few and modest for the ...


Privatising Community Corrections, Carole Mccarthy, Robyn Lincoln, Paul Wilson Feb 2009

Privatising Community Corrections, Carole Mccarthy, Robyn Lincoln, Paul Wilson

Paul Wilson

[Extract from introduction] Queensland has 18 per cent of Australia’s population, 26 per cent of Australia’s prisoners and 35 per cent of Australia’s community corrections clients (Graycar 2000). The average period served in the State’s prisons by inmates released during 1997-98 was 4.2 months for males and 2.1 months for females; where over one-quarter of all people admitted to prison were imprisoned for fine default only (CJS Monitor 1999, 4, February). These statistics demonstrate that Queensland is over-represented in its use of correctional options; (1) that previous prison reforms — which attempted to keep those ...


Privatising Community Corrections, Carole Mccarthy, Robyn Lincoln, Paul Wilson Feb 2009

Privatising Community Corrections, Carole Mccarthy, Robyn Lincoln, Paul Wilson

Robyn Lincoln

[Extract from introduction] Queensland has 18 per cent of Australia’s population, 26 per cent of Australia’s prisoners and 35 per cent of Australia’s community corrections clients (Graycar 2000). The average period served in the State’s prisons by inmates released during 1997-98 was 4.2 months for males and 2.1 months for females; where over one-quarter of all people admitted to prison were imprisoned for fine default only (CJS Monitor 1999, 4, February). These statistics demonstrate that Queensland is over-represented in its use of correctional options; (1) that previous prison reforms — which attempted to keep those ...


Lessons Learned From Punishment Exchange Rates: Implications For Research, Theory, And Correctional Policy, David May, Peter Wood, Amy Eades Dec 2007

Lessons Learned From Punishment Exchange Rates: Implications For Research, Theory, And Correctional Policy, David May, Peter Wood, Amy Eades

David May

A growing number of studies have used exchange rates to examine perceptions of the punitivieness of prison when compared to alternative sanctions among prisoners, probationers, parolees, correctional professionals, and judges. Without exception, the findings from these research efforts call into question the punishment continuum that anchors probation as the least punitive sanction and prison as the most punitive. In this paper, we combine findings from these research efforts with data collected from 1271 adults to propose a revised continuum of punishment. Additionally, we provide a theoretical framework to help explain how offenders experience correctional sanctions, and offer suggestions for policy ...


Jamais Deux Sans Trois: Principes Régissant Les Effets De La Récidive Sur La Peine Et La Libération Conditionnelle Dans Les Codes Pénaux Européens (French), Sacha Raoult Dec 2006

Jamais Deux Sans Trois: Principes Régissant Les Effets De La Récidive Sur La Peine Et La Libération Conditionnelle Dans Les Codes Pénaux Européens (French), Sacha Raoult

Sacha Raoult

This paper examines the general principles that guide the classical treatment of an offender's dangerousness in the criminal codes of sixteen European countries. It provides a review of the way in which each penal code deals with both multiple offenders and the terms of parole. There is substantial variety in the legal definitions and effect of recidivism, with some very strict criteria in place in some states. The same various degree of arbitrariness and lack of clear standards apply to the terms of parole. Though arbitrariness in the administering of these legal categories is common throughout Europe, it can ...


Sentence Disparity In Lewis And Clark And Gallatin Counties, Benji Cosgrove Apr 1999

Sentence Disparity In Lewis And Clark And Gallatin Counties, Benji Cosgrove

Sociology and Anthropology Undergraduate Theses

This research investigates institutional discrimination in the Gallatin and Lewis and Clark County Courts exhibited in the sentencing phase of trial. Through an investigation ofthe sentences given by these courts in 1997, as well as the demographic factors ofthe offenders receiving sentences, institutional discrimination was apparent to some extent. The factors involved in this process are further explored through an examination of relevant sociological theory