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Innocence And Federal Habeas After Aedpa: Time For The Supreme Court To Act, Joseph L. Hoffmann

Articles by Maurer Faculty

No abstract provided.

Getting Time For An Acquitted Crime: The Unconstitutional Use Of Acquitted Conduct At Sentencing And New York's Call For Change, Megan Sterback

Touro Law Review

No abstract provided.

Prevention As The Primary Goal Of Sentencing: The Modern Case For Indeterminate Dispositions In Criminal Cases, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Among modern-day legal academics determinate sentencing and limiting retributivism tend to be preferred over indeterminate sentencing, at least in part because the latter option is viewed as immoral. This Article contends to the contrary that, properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so. More specifically, the position defended in this Article is that, once a person is convicted of such an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within very broad ranges set by the …

Juvenile Penalties For “Lawyering Up”: The Role Of Counsel And Extralegal Case Characteristics, Gaylene Armstrong, Bitna Kim

Criminology and Criminal Justice Faculty Publications

The presence of counsel for juveniles in the courtroom seems advantageous from a due process perspective, yet some studies suggest that juveniles receive harsher dispositions when represented by an attorney. This study tested whether a “counsel penalty” existed regardless of attorney type and, guided by prior sentencing literature, used a more comprehensive model to determine the influence of extralegal and contextual factors that may amplify the counsel penalty. Utilizing official data from a Northeastern state in a multilevel modeling strategy, this study found that regardless of the type of counsel retained, harsher sentences were received as compared with cases in …

Why Should States Pay For Prisons, When Local Officials Decide Who Goes There?, W. David Ball

Faculty Publications

In the United States, states typically pay for prisons, even though the decisions that lead to prison admissions — arresting, charging, and sentencing — are made by local officials. The practice of state subsidies is relatively recent: there were no state prisons in the early part of the country’s history, and even as state institutions began to be developed, they largely supported themselves financially, rendering the notion of subsidies moot. Given the political economy of local decision-making, local preferences are unlikely to result in optimally-sized state prison populations. This Article suggests that since state prison subsidies may not be desirable …

The Origins Of Back-End Sentencing In California: A Dispatch From The Archives, Sara Mayeux

Vanderbilt Law School Faculty Publications

In recent years, policy analysts have generated a small body of literature about the practice of "back-end sentencing," observing that California uses parole revocation in lieu of criminal prosecution for a surprisingly high number of cases, including many that would otherwise be considered serious crimes. Some of these offenders may be getting away with far shorter sentences than if their conduct were prosecuted criminally. Surely others are being railroaded into serving time for charges of which they could never be convicted beyond a reasonable doubt. And many are being cycled in and out of prison on fairly minor violations for …

Anti-Bribery Legislation In The United States And United Kingdom: A Comparative Analysis Of Scope And Sentencing, Margaret Ryznor, Samer Korkor

Missouri Law Review

Lawmakers and prosecutors continue to take aim at a major subset of global corruption - corporate bribery of foreign government officials. Specifically, while the enforcement of the Foreign Corrupt Practices Act in the United States has risen to new records, the United Kingdom has revolutionized its anti-bribery law following global criticism of its previously relaxed legal regime. Both U.S. and U.K. anti-bribery laws, furthermore, apply extraterritorially and have the capability to entangle even the largest multinational companies in their legal frameworks. These all-encompassing frameworks hold significant consequences for both corporations and their employees, but the increasing power of anti-bribery law …

A Rational Post-Booker Proposal For Reform Of Federal Sentencing Enhancements For Prior Convictions, Caleb E. Mason, Scott M. Lesowitz

Northern Illinois University Law Review

In this article we propose a solution to one of the more vexing problems in current federal sentencing jurisprudence: classification of prior offenses for the purpose of applying sentencing enhancements in immigration cases. The current system is unduly difficult to apply and leads to poor sentencing outcomes. We urge the United States Sentencing Commission to conduct systematic empirical surveys of crime definitions and prosecution practice, on both the interstate and intrastate level. The Commission should use those surveys to determine which specific statutes of conviction should trigger the relevant enhancements, instead of forcing the courts to decide on a statute-by-statute …

Sorry Seems To Be The Hardest Word: The Fair Sentencing Act Of 2010, Crack, And Methamphetamine, Kyle Graham

University of Richmond Law Review

No abstract provided.

Citizenship And Punishment: Situating Death Penalty Jury Sentencing, Sarah Beth Kaufman

Sociology & Anthropology Faculty Research

Although capital punishment in the United States is subject to much social scientific scrutiny, there has been little ethnographic study of death penalty trials. This is not only an empirical lacuna, but also a theoretically and politically important one: by failing to take capital trials as primary objects of inquiry, the practices of lawyers, witnesses, judges, and others are viewed as products of, rather than implicated in, the institution of criminal justice. Based on an ethnography of fifteen death penalty sentencing trials across the United States during 2007, 2008, and 2009, this article seeks to understand the role of juries …

Sentencing Outcomes Of Convicted Child Sex Offenders, Steven Patrick, Robert Marsh

Sociology Faculty Publications and Presentations

This research examines the sentencing outcomes of convicted child sexual offenders from data collected over an eight year period. Multiple regression and nominal log linear regression are used to examine length of prison sentence, length of probation sentence, and whether or not the convicted offender is actually sent to prison or to probation. While many independent variables appear to be related to sentence outcome, they fall into three categories: characteristics of the offender, characteristics of the victim, and characteristics of the crime. Additionally, while many variables appear related at the bivariate level, when multivariate analysis is applied, fewer variables remain …

Incorporating Collateral Consequences Into Sentencing Guidelines And Recommendations Post-Padilla, Michael A. Wolff

Saint Louis University Public Law Review

No abstract provided.

Juvenile Life Without Parole: Unconstitutional In Michigan?, Kimberly A. Thomas

Articles

Last term, in Graham v Florida,1 the United States Supreme Court found unconstitutional the sentence of life without parole for a juvenile who committed a non-homicide offense. This attention to the sentencing of juvenile offenders is a continuation of the Court's decision in Roper v Simmons,2 in which the Court held that juvenile offenders could not constitutionally receive the death penalty. This scrutiny should be a signal to Michigan to examine its own jurisprudence on juveniles receiving sentences of life without parole. Michigan has the second-highest number of persons serving sentences of life without parole for offenses committed when they …

A Punishing Court Docket, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Need To Overrule Mapp V. Ohio, William T. Pizzi

University of Colorado Law Review

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious level, …

The Need To Overrule Mapp V. Ohio, William T. Pizzi

Publications

This Article argues that it is time to overrule Mapp v. Ohio. It contends that the exclusionary rule is outdated because a tough deterrent sanction is difficult to reconcile with a criminal justice system where victims are increasingly seen to have a stake in criminal cases. The rule is also increasingly outdated in its epistemological assumption which insists officers act on "reasons" that they can articulate and which disparages actions based on "hunches" or "feelings." This assumption runs counter to a large body of neuroscience research suggesting that humans often "feel" or "sense" danger, sometimes even at a subconscious …

Federalism And Criminal Law: What The Feds Can Learn From The States, Rachel E. Barkow

Michigan Law Review

Criminal law enforcement in the United States is multijurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance on how to handle the issue of law enforcement allocation is within the states themselves. …

Blowing Out All The Candles: A Few Thoughts On The Twenty-Fifth Birthday Of The Sentencing Reform Act Of 1984, J. C. Oleson

University of Richmond Law Review

No abstract provided.

Cost Conscious Justice: The Case For Wholly-Informed Discretionary Sentencing In Kentucky, Emily M. Grant

Kentucky Law Journal

No abstract provided.

Falling Through The Crack: How Courts Have Struggled To Apply The Crack Amendment To Nominal Career And Plea Bargain Defendants, Maxwell Arlie Halpern Kosman

Michigan Law Review

Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However Rule 43(b)(2) carves out an exception for organizational defendants, stating that they "need not be present" if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the …

International Human Rights, A "Foolproof" Death Penalty Act, And The Politics Of Capital Punishment, Russell G. Murphy

Suffolk University Law School Faculty Works

A majority of American states recognize the death penalty as a lawful and constitutional sentence for the most serious crimes committed by the most dangerous and blameworthy criminals. However, in recent years, numerous flaws in capital punishment systems have caused courts in the United States to reverse death sentences. Over one hundred death row inmates have been exonerated and released from prison. These same problems – racial bias, untrustworthy evidence, police and prosecutor misconduct, jury malfunctioning – have been joined with more philosophical notions of the limits of government and respect for human dignity to make capital punishment a human …

New Crimes And Punishments: A Case Study Regarding The Impact Of Over-Criminalization On White Collar Criminal Cases, Lucian E. Dervan

Law Faculty Scholarship

Over-criminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of the over-criminalization phenomenon by examining two types of over-criminalization prevalent in white collar criminal law. The first type of over-criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly. The second type of over-criminalization addressed in this article is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to …

Turning The Corner On Mass Incarceration?, David Cole

Georgetown Law Faculty Publications and Other Works

For the first time in forty years, the national incarceration rate is flattening out, even falling in state prisons. For the first time in three decades, the number of adults under any kind of correctional supervision—in prison or jail or on probation or parole—fell in 2009. At the same time, legal reforms that might have seemed impossible in prior years have increasingly been adopted, reducing penalties for certain crimes, eliminating mandatory sentencing for others, and increasing expenditures for reintegration of prisoners into society. And racial disparities, a persistent and deep-rooted problem in the American criminal justice system, after rising for …

Death Is Not So Different After All: Graham V. Florida And The Court's "Kids Are Different" Eighth Amendment Jurisprudence, Mary E. Berkheiser

Scholarly Works

In Graham v. Florida, the United States Supreme Court declared that life sentences without the possibility of parole for non-homicides are off limits for all juveniles. Following its lead in Roper v. Simmons, the landmark decision in which the Court abolished the juvenile death penalty, the Court expanded on its Eighth Amendment juvenile jurisprudence by ruling that locking up juveniles for life based on crimes other than homicides is cruel and unusual and, therefore, prohibited by the Eighth Amendment. With that ruling, the Court erected a categorical bar to incarcerating forever those not yet adults at the time …

Race Disparity Under Advisory Guidelines: Dueling Assessments And Potential Responses, Ryan W. Scott

Articles by Maurer Faculty

Dueling studies of race disparity, one by the U.S. Sentencing Commission (USSC, 2010) and an alternative analysis published in this issue by Ulmer, Light, and Kramer (2011), diverge sharply in their methodological choices and in their characterization of trends in federal sentencing. The Commission’s study suggests a marked increase in race disparity, differences in sentencing outcomes between racial groups that cannot be explained by controlling for relevant nonrace factors, after the Supreme Court’s decisions in United States v. Booker (2005) and Gall v. United States (2007). Those decisions rendered the federal Sentencing Guidelines advisory and set a highly deferential standard …

'The Mess We’Re In': Five Steps Towards The Transformation Of Prison Cultures, Lynn S. Branham

All Faculty Scholarship

Few dispute that conditions in prisons need to be improved – that, for example, prisoners with mental-health problems need to have those problems addressed, and addressed effectively, while they are confined. But the more fundamental question is whether prisons can be, not just improved, but transformed. Transformation in this context means deep and sustained changes in the ethos of those who work and live in prisons. That ethos would reflect at least four precepts: (1) hope as an imperative; (2) the viability of renewal; (3) the catharsis that attends personal responsibility and accountability; and (4) the duty and call, extending …

Beyond Experience: Getting Retributive Justice Right, Dan Markel, Chad Flanders, David C. Gray

All Faculty Scholarship

How central should hedonic adaptation be to the establishment of sentencing policy?

In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release …

Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii

Faculty Publications

This is an introductory essay to Volume 23, Number 2, of the FEDERAL SENTENCING REPORTER, which considers the state of American criminal justice policy in 2010, two years after the "Change" election of 2008. Part I of the essay paints a statistical picture of trends in federal criminal practice and sentencing over the last half-decade or so, with particular emphasis on sentence severity and the degree of regional and inter-judge sentencing disparity. The statistics suggest that the expectation that the 2005 Booker decision would produce a substantial increase in the exercise of judicial sentencing discretion and a progressive abandonment of …

Strong Medicine: Toward Effective Sentencing Of Child Pornography Offenders, Kristin Carlson

Michigan Law Review First Impressions

In recent years, possessors of child pornography have entered the federal criminal justice at an alarming rate. In 2006, child pornography cases accounted for sixty-nine percent of the child exploitation cases that were prosecuted federally. Average federal sentences for these offenses also rose sharply, by about 300 percent over the past fourteen years. The mean sentence imposed for child pornography offenses increased from thirty-six months in 1994 to 109 months by 2008. The severe sentences imposed on possessors of child pornography in federal courts have inspired an ongoing deb ate. Critics feel the U.S. Sentencing Guidelines are too harsh on …

What Fits The Crime: Does Factors Influence In A Person’S Judgment?, Amanda Vance

Undergraduate Psychology Research Methods Journal

The purpose and rationale for this experiment is to distinguish if factors such as race, prior offences, type of crime, level of seriousness of the crimes plays a role in a person’s judgment based on the type and severity of punishment. For this study participants were to state the type of punishment that the criminal were to be given for committing a certain crime. There were two independent variables used for the study, the independent variables were the race of the criminal was changed and if the criminal had prior offenses or were a first time offender. The hypothesis was …