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The Federal Sentencing Guidelines: A Misplaced Trust In Mechanical Justice, Evangeline A. Zimmerman

University of Michigan Journal of Law Reform

In 1984 the Sentencing Reform Act was passed, ending fully discretionary sentencing by judges and allowing for the creation of the Federal Sentencing Guidelines ("FSG" or "Guidelines"). This Note proposes that the Guidelines failed not only because they ran afoul of the Sixth Amendment, as determined by the Supreme Court in 2005, but also because they lacked a clear underlying purpose, had a misplaced trust in uniformity, and were born of political compromise. Moreover, the effect of the FSG was to blindly shunt discretionary decisions from judges, who are supposed to be neutral parties, to prosecutors, who are necessarily partisan. …

The Impact Of Civilian Aggravating Factors On The Military Death Penalty (1984-2005): Another Chapter In The Resistance Of The Armed Forces To The Civilianization Of Military Justice, Catherine M. Grosso, David C. Baldus, George Woodworth

University of Michigan Journal of Law Reform

In 1984, the U.S. Armed Forces amended its capital punishment system for death eligible murder to bring it into compliance with Furman v. Georgia. Those amendments were modeled after death penalty legislation prevailing in over thirty states. After a brief period between 1986 and 1990, the charging decisions of commanders and the conviction and sentencing decisions of court martial members (jurors) transformed the military death penalty system into a dual system that treats two classes of death eligible murder quite differently. Since 1990, a member of the armed forces accused of a killing a commissioned officer or murder with a …

Is There An "Innocent Female Victim" Effect In Capital Punishment Sentencing?, Amelia Lane Kirkland

USF Tampa Graduate Theses and Dissertations

Disparities in the administration of capital punishment are a prominent social and political issue. While the focus of death penalty disparity research initially lay with the defendant and how the defendant’s race or ethnicity affects sentencing outcomes, only marginal support for offender effects has been found. A consistent finding, however, is that victim race has a significant effect on capital sentencing outcomes. Recent examinations of the joint effects of victim characteristics indicate that victim gender also has some influence in capital sentencing decisions. While these prior studies have examined the interactive effects of victim gender and victim race the current …

Lethal Discrimination, J. Thomas Sullivan

Law Faculty Scholarship

No abstract provided.

State V. Burgess: A Limitation On A Defendant’S Right To Remain Innocent, Elizabeth Lahey

The University of New Hampshire Law Review

[Excerpt] “This note will explore the current state of the privilege against self-incrimination, particularly in regard to whether it works to bar negative inferences from being drawn from a defendant’s silence during sentencing in order to determine his remorse for the crime of which he has been convicted. I will focus primarily on the issue in the context of the recent New Hampshire case State v. Burgess. In that case, the court recognized the application of the privilege at sentencing, but nonetheless carved out a unique exception which made negative inferences permissible at sentencing when the defendant has admitted to …

Capital Punishment In Illinois In The Aftermath Of The Ryan Commutations: Reforms, Economic Realities, And A New Saliency For Issues Of Cost, Leigh Buchanan Bienen

Faculty Working Papers

In 2000 when Governor George Ryan unilaterally imposed a statewide moratorium on executions in Illinois, in response to accumulating evidence of more than a dozen wrongfully convicted persons on death row in Illinois. In 1999 the Illinois legislature created the Capital Litigation Trust Fund, to allow private, appointed defense counsel, state's attorneys , and public defenders to be paid directly for the expenses of a capital trial from state appropriated funds, upon the approval of the trial court judge. Publishing new data on capital prosecutions in Illinois since 2000, this article documents evidence of state money spent at the county …

Debacle: How The Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended, Frank O. Bowman Iii

Faculty Publications

This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continued in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the …

Getting A Fix On Cocaine Sentencing Policy: Reforming The Sentencing Scheme Of The Anti-Drug Abuse Act Of 1986, Alyssa L. Beaver

Fordham Law Review

The now-infamous “War on Drugs” campaign of the 1980s culminated in the adoption of the Anti-Drug Abuse Act of 1986, which included a provision for a one-hundred-to-one sentencing ratio of powder cocaine to crack cocaine. This ratio provides that the penalty for a crime involving five or ten grams of crack cocaine is equivalent to the sentence for a crime involving five hundred or one thousand grams of powder cocaine. This structure has led to a racial disparity in sentencing because African Americans are more often charged with a crack cocaine offense than Caucasians, who are usually indicted for powder …

Protecting Crime Victims In Federal Appellate Courts: The Need To Broadly Construe The Crime Victims' Rights Act's Mandamus Provisions, Paul Cassell

Utah Law Faculty Scholarship

In 2004, Congress passed the Crime Victims’ Rights Act to dramatically reshape the federal criminal justice system and ensure that crime victims are treated fairly in the criminal process. An important feature of the CVRA is its provisions allowing victims to enforce their rights not only in trial courts, but also in appellate courts. Among the enforcement provisions is one guaranteeing a crime victim expedited access to appellate review. The CVRA provides that if the district court denies any relief sought by a crime victim, the victim “may petition the court of appeals for a writ of mandamus. . . …

Criminal Alternative Dispute Resolution: Restoring Justice, Respecting Responsibility, And Renewing Public Norms, Maggie T. Grace

Student Articles and Papers

This Article explores theoretical concerns underlying contemporary appeals to Alternative Dispute Resolution ("ADR") in the criminal justice system. Analyzing literature on free will and responsibility and leading work on transitional justice, I argue that a restorative justice approach to criminal ADR better accommodates the realities of social conditions that correlate with criminality while respecting deeply-held concepts of responsibility. I further argue that this approach provides a useful response to critics, such as Owen Fiss, who argue that ADR privatizes disputes, thereby failing to produce and reinforce essential public norms.

The Process Is The Problem: Lessons Learned From United States Drug Sentencing Reform, Erik S. Siebert

University of Richmond Law Review

No abstract provided.

Federal Rules Update: How Rules Are Made: A Brief Review, David A. Schlueter

Faculty Articles

A number of amendments to the Federal Rules of Procedure and Evidence became effective on December 1, 2009. The change to Criminal Rule 7 deleted subdivision (c)(2), which required that the indictment include notice that the defendant has an interest in forfeitable property. Criminal Rule 32 now provides that the presentence report state whether the government is seeking forfeiture of property. Criminal Rule 32.2 received six amendments concerning criminal forfeiture. Criminal Rule 41 created a two-step process for seizing and reviewing electronic storage media. Further, of the Rules Governing § 2254 Proceedings, Rule 11 was created to make the requirements …

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

Faculty Publications

This Essay considers the circumstances that led to the enactment of the Fair Sentencing Act of 2010, which increased the quantities of crack cocaine necessary to implicate mandatory minimum prison sentences for federal drug trafficking crimes, and considers whether the Act might facilitate re-evaluation of the penalty scheme applicable to methamphetamine.

The Impact Of Race, Gender, And Age On The Pretrial Decision, Tina L. Freiburger, Carly M. Hilinski

Peer Reviewed Publications

There is an abundance of studies that examine judicial discretion in the final sentencing stages; however, few have examined discretion in the early stages of court decisions. Pretrial release is especially concerning as it has been strongly correlated with a final sentence of incarceration and deprives defendants of their freedom. This study examined whether race, gender, and age influence judges’ decisions to detain or release a defendant prior to trial. The results indicate that females and younger defendants were less likely to be detained. Race was not significant after economic variables were included. When examining males and females separately, race …

Do Ugly Criminals Receive Harsher Sentences? An Analysis Of Lookism In The Criminal Justice System, Kelly Beck

Business and Economics Honors Papers

For many years, researchers have attempted to find a link between beauty and labor market outcomes. Although many important findings have been noted in these studies, the beauty analysis utilized was a subjective measurement. This subjective method, while important, may have external factors creating bias in the rating itself. In this study, the impact of beauty is applied to criminals and their sentences. Using a computer based symmetry measurement tool, an objective beauty measurement will be utilized. This study will seek to uncover whether or not criminals who are less attractive, measured through facial symmetry, receive harsher prison sentences than …

A Distributive Theory Of Criminal Law, Aya Gruber

Publications

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment-retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in …

Retribution And Reform, Chad Flanders

Maryland Law Review

No abstract provided.

Retributivism For Progressives: A Response To Professor Flanders, David Gray, Jonathan Huber

Maryland Law Review

No abstract provided.

Can Retributivism Be Progressive?: A Reply To Professor Gray And Jonathan Huber, Chad Flanders

Maryland Law Review

No abstract provided.

What Does Graham Mean In Michigan?, Kimberly A. Thomas

Articles

In Graham v. Florida, the United States Supreme Court held that life without parole could not be imposed on a juvenile offender for a nonhomicide crime.1 In this context, the Graham Court extensively discussed the diminished culpability of juvenile criminal defendants, as compared to adults. The Court relied on current scientific research regarding adolescent development and neuroscience. While the narrowest holding of Graham has little impact in Michigan, the science it relies on, and the potential broader implications for adolescents in Michigan, are significant.

Why Care About Mass Incarceration?, James Forman Jr.

Georgetown Law Faculty Publications and Other Works

The United States incarcerates more of its citizens than any other nation in the world. Paul Butler’s Let’s Get Free: A Hip-Hip Theory of Justice makes an important contribution to the debate about the crime policies that have produced this result. Butler began his career as a federal prosecutor who believed that the best way to serve Washington, D.C’s low-income African-American community was to punish its law-breakers. His experiences—including being prosecuted for a crime himself—eventually led him to conclude that America incarcerates far too many nonviolent offenders, especially drug offenders. Let’s Get Free offers a set of reforms for reducing …

The False Promise Of Retributive Proportionality, Aya Gruber

Publications

No abstract provided.

Inter-Judge Sentencing Disparity After Booker: A First Look, Ryan W. Scott

Articles by Maurer Faculty

A central purpose of the Sentencing Reform Act was to reduce inter-judge sentencing disparity, driven not by legitimate differences between offenders and offense conduct, but by the philosophy, politics, or biases of the sentencing judge. The federal Sentencing Guidelines, despite their well-recognized deficiencies, succeeded in reducing that form of unwarranted disparity. But in a series of decisions from 2005 to 2007, the Supreme Court rendered the Guidelines advisory (Booker), set a highly deferential standard for appellate review (Gall), and explicitly authorized judges to reject the policy judgments of the Sentencing Commission (Kimbrough). Since then, the Commission has received extensive anecdotal …

How (Not) To Think Like A Punisher, Alice G. Ristroph

Georgetown Law Faculty Publications and Other Works

This article examines the several and sometimes contradictory accounts of sentencing in proposed revisions to the Model Penal Code. At times, sentencing appears to be an art, dependent upon practical wisdom; in other instances, sentencing seems more of a science, dependent upon close analysis of empirical data. I argue that the new Code provisions are at their best when they acknowledge the legal and political complexities of sentencing, and at their worst when they invoke the rhetoric of desert. When the Code focuses on the sentencing process in political context, it offers opportunities to deploy both practical wisdom and empirical …

Strategery's Refuge, Christopher W. Seeds

Cornell Law Faculty Publications

By popular account, the Supreme Court’s recent decisions on effective assistance of counsel in capital sentencing—aggressive critiques of counsel’s failure to investigate and present mitigating evidence—initiate an era of improved oversight of the quality of legal representation in death penalty cases. One would expect the new and improved jurisprudence to curb post hoc efforts by trial counsel to disguise incomplete trial preparation as a tactical decision, a practice that has long undercut the Strickland doctrine. But the shelters for post hoc rationalizations—the refuges for “strategery”—remain. Surveying decisions of the federal courts of appeals since the turn of the century, this …

Heinous, Atrocious, And Cruel: Apprendi, Indeterminate Sentencing, And The Meaning Of Punishment, W. David Ball

Faculty Publications

Under Apprendi v. New Jersey, any fact that increases an offender's maximum punishment must be found by a jury beyond a reasonable doubt. The Apprendi literature has focused on the allocation of power between judge and jury, ignoring entirely the role of the parole board in indeterminate sentences-that is, sentences which terminate in discretionary parole release. In an indeterminate sentence, a judge makes a pronouncement about the length of the prescriptive sentence to be imposed, but the parole board decides the actual sentence that is, in fact, imposed.

In this Article, I explore the Apprendi ramifications of indeterminate sentencing. In …

Dan Freed: My Teacher, My Colleague, My Friend, Ronald Weich

All Faculty Scholarship

At a recent meeting of the National Association of Sentencing Commissions, Yale professor Dan Freed was honored during a panel discussion titled "Standing on the Shoulders of Sentencing Giants," Dan Freed is indeed a sentencing giant. but he is the gentlest giant of all. It is hard to imagine that a man as mild-mannered, soft-spoken, and self-effacing as Dan Freed has had such a profound impact on federal sentencing law and so many other areas of criminal justice policy, Yet he has.

I've been in many rooms with Dan Freed over the years — classrooms, boardrooms, dining rooms, and others. …

Reflections On Capital Punishment, Rob Warden

Northwestern Journal of Law & Social Policy

Authored by the Executive Director of the Center on Wrongful Convictions, this powerful article reviews the many different arguments against the death penalty and uses a multitude of case discussions to show how the death penalty works, not in theory, but in practice. Some of these arguments include: the death penalty does not have a demonstrable deterrent effect; it costs more to maintain the system than to imprison murderers for life; many wrongfully condemned defendants have been saved by the serendipitous discovery of evidence not available during trial; innocent persons have been executed; the death penalty has been applied in …

Evaluating The Consequences Of Calibrated Sentencing: A Response To Professor Kolber, Miriam H. Baer

Faculty Scholarship

This is a Response to Adam Kolber's essay, The Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009). Kobler criticizes courts for failing to take into account subjective experience of punishment when imposing sentences for criminal conduct. Kolber contends that the failure to calibrate punishment to reflect subjective experience undermines both retributivist and consequentialist arguments for punishment.

This Response grapples with the consequentialist implications of Kolber's argument. Specifically, it argues that calibrated sentencing may be far less desirable than its logical alternative, calibrated policing. Indeed, many would say that we already distribute police resources based on our estimation of …

In Defense Of Victim Impact Statements, Paul Cassell

Utah Law Faculty Scholarship

This paper provides a comprehensive justification of "victim impact statements" in criminal sentencing, explaining how such statements are important to crime victims and how the critics of such statements fail to grapple with the need for these statements to victims.