Digital Commons Network^™

Jury Sentencing As Democratic Practice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

After a century of reform and experimentation, sentencing remains a highly contested area of the criminal justice system. Scholars as well as the public at large disagree about the proper purposes and functions of punishment, and dissatisfaction with the sentencing status quo is high. Most recent critiques of the sentencing process have focused on the amount of discretion tolerated by the system. This Article goes further in arguing that the source of sentencing discretion is also very important to the legitimacy and integrity of the sentencing process. In the absence of wide consensus on sentencing goals, it is best to …

Beyond The Bright Line: A Contemporary Right-To-Counsel Doctrine, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

The current right-to-counsel doctrine was developed in the 1970's. It created a bright-line rule still in effect today. The right to counsel attaches only at "critical stages" of a criminal prosecution. Under this critical stage doctrine, the right to counsel only attaches after the initiation of formal adversary proceedings and only applies to confrontations between the accused and the prosecution or law enforcement. In the years following the Supreme Court's development of the critical stage doctrine, national trends of mandatory sentencing and sentencing guidelines revolutionized criminal procedure and dramatically altered the roles of the system's key players.

Now, defense counsel's …

An Argument Against The Arbitrary Acceptance Of Guilty Pleas As Statements Against Interest, Mary Cecilia Sweeney-Kwok

Fordham Law Review

No abstract provided.

Past Violence, Future Danger?: Rethinking Diminished Capacity Departures Under Federal Sentencing Guidelines Section 5k2.13, Eva E. Subotnik

Faculty Publications

Under section 5K2.13 of the Federal Sentencing Guidelines, a judge is permitted to reduce a defendant's sentence on the grounds of diminished capacity. Most courts construing this provision have ruled that defendants whose offenses involved violence or the threat of violence are ineligible for a reduction in sentence. This Note argues that such an interpretation, which makes past violence a proxy for predicting future dangerousness, is problematic. Medically or psychologically treated, defendants may no longer pose a danger to society. This Note urges that, in accordance with section 5K2.13's language and history, courts should focus more broadly on whether the …

Washington State's Return To Indeterminate Sentencing For Sex Offenses: Correcting Past Sentencing Mistakes And Preventing Future Harm, Jennifer M. Mckinney

Seattle University Law Review

The Washington legislature's return to indeterminate sentencing corrects its original mistake of setting fixed sentences for sex offenders with no supervision after release. Unlike the present civil commitment system, indeterminate sentencing preventatively detains offenders in the criminal system, protects the public, and ensures more control over offenders following their prison terms. Indeterminate sentencing provides a more efficient and effective alternative to the civil commitment process. Section II will briefly discuss the progression of sex offender sentencing from the original parole system to the present changes, and why past structures were instituted and later modified or repealed. Furthermore, Section II will …

The Evolution Of Drug Laws In America And The Variation In Penalties And Sentencing In State Courts, Robert Christopher Hogenson

UNLV Retrospective Theses & Dissertations

The purpose of this study was to examine the evolution of major drug laws in the United States, the variation in statutory penalties between selected states, and to determine if the written law is reflected in sentencing and prison admissions. Penalties for felony possession and illicit trafficking for five states-Arizona, Florida, Illinois, Nevada, and New York---were compared with case disposition, incarceration rates, and average time offenders spend in jail or prison for these offenses. Two data sources from Bureau of Justice Statistics were utilized for this analysis. The first data set was titled "State Court Processing Statistics, 1990, 1992, 1994, …

Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich

All Faculty Scholarship

The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.

Unlike previous slabs at reform, the Innocence Protection Act (lPA) has a real chance to become law because it commands unusually broad bipartisan support. The Senate bill (S. 486) is sponsored by Democrat Pat Leahy of Vermont and Republican Gordon Smith of Oregon. The House bill (H.R. 912) is sponsored by Democrat Bill Delahunt of …

The 2001 Federal Economic Crime Sentencing Reforms: An Analysis And Legislative History, Frank O. Bowman Iii

Faculty Publications

This Article has four parts. First, it describes the general structure of the Federal Sentencing Guidelines and the approach to sentencing economic crimes in effect between 1987 and 2001. Second, it outlines the defects in the former economic crime guidelines that led to the call for reform. Third, it describes the process undertaken by the Sentencing Commission that led to the passage of the 2001 economic crime amendments and, in so doing, provides a roadmap to sources of legislative history. Fourth, it explains and analyzes the new guidelines in light of their legislative history, with primary emphasis on the consolidated …

Blue-Collar Crimes/White-Collar Criminals: Sentencing Elite Athletes Who Commit Violent Crimes, Michael M. O'Hear

Marquette Sports Law Review

No abstract provided.

Constitutional Formalism And The Meaning Of Apprendi V. New Jersey, Benjamin Priester

Journal Publications

In June 2000, the United States Supreme Court decided Apprendi v. New Jersey,' a case that likely will have a significant impact on the administration of criminal justice in federal and state courts. The Court imposed a procedural limitation on prosecutors by restricting the types of facts that may be proven at sentencing rather than at trial. Specifically, the Court adopted a constitutional principle that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum" is an element of the offense of conviction. Under wellestablished constitutional doctrine, the Constitution's full procedural protections, especially the necessity of …

The Reality Of Guidelines Sentencing, The Honorable Gerald W. Heaney

Saint Louis University Law Journal

No abstract provided.

The U.S. Sentencing Guidelines: Where Do We Go From Here?, José A. Cabranes

Saint Louis University Law Journal

No abstract provided.

Simplifying The U.S. Sentencing Commission’S Offense Scale, Peter B. Hoffman

Saint Louis University Law Journal

No abstract provided.

Fear Of Law: Thoughts On Fear Of Judging And The State Of The Federal Sentencing Guidelines (Sentencing Symposium), Frank O. Bowman Iii

Faculty Publications

To understand Fear of Judging and the debate over the Federal Sentencing Guidelines requires some familiarity with the sentencing reform movement that led to the adoption of the Federal Sentencing Guidelines in 1987, as well as at least a rudimentary grasp of the structure of the Guidelines themselves. For those readers who require an introduction to both subjects, the next section of this Article attempts to provide one. Those already familiar with the Guidelines and their history can skip to Section III, where the discussion of Fear of Judging begins in earnest.

No Women At The Center: The Use Of The Canadian Sentencing Circle In Domestic Violence Cases, Rashmi Goel

Sturm College of Law: Faculty Scholarship

For Canadian Aboriginal women, domestic violence is pervasive. A report by the Ontario Native Women’s Association indicates that eighty percent of Aboriginal women surveyed had personally experienced family violence. In this context, Rashmi Goel looks at the use of sentencing circles to respond to wrongdoing by Aboriginal people. Current Aboriginal justice initiatives emphasize a return to traditional values and processes, manifested in one way in the sentencing circle. Yet, states Goel, such initiatives fail to restore Aboriginal women to their honored place. Contemporary Canadian sentencing circles exemplify this problem; they further injure victims in several respects. Hence, Goel argues that …

A Call For Comment: Restyling And Amending The Federal Rules Of Criminal Procedure, David A. Schlueter

Faculty Articles

In August 2000, the Judicial Conference’s Committee on Rules of Practice and Procedure published—for public comment—proposed amendments to the entire set of Federal Rules of Criminal Procedure. The proposals mark the culmination of a two-year project to “restyle” the rules—to modernize and reorganize and to make them internally consistent in format and style. Not since the rules were first promulgated in 1946 has there been such a significant change in the structure, format, and substance. This article first addresses the rule-making process for the Federal Rules of Criminal Procedure, and then examines the restyling process. Finally, it notes several of …

The Sale Of English Justice, Kimberly Ann Page

Denver Journal of International Law & Policy

No abstract provided.

The Victim's Rights Amendment: A Prosecutor's, And Surprisingly, A Defense Attorney's Support In Sentencing, Steven I. Platt, Jeannie Pittillo Kauffman

Maryland Law Review

No abstract provided.

When Balance And Fairness Collide: An Argument For Execution Impact Evidence In Capital Trials, Wayne A. Logan

University of Michigan Journal of Law Reform

A central precept of death penalty jurisprudence is that only the "death worthy" should be condemned, based on a "reasoned moral response" by the sentencing authority. Over the past decade, however, the Supreme Court has distanced itself from its painstaking efforts in the 1970s to calibrate death decision making in the name of fairness. Compelling proof of this shift is manifest in the Court's decisions to permit victim impact evidence in capital trials, and to allow jurors to be instructed that sympathy for capital defendants is not to influence capital decisions. This Article examines a novel strategy now being employed …

The Offense: Interpreting The Indictment Requirement In 21 U.S.C. § 851, Christopher Serkin

Michigan Law Review

Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970 ("the Act") to unify and rationalize its treatment of drug offenses. The Act was an enormous piece of legislation, requiring months of congressional hearings before it was passed. Today, the Act encompasses over 150 sections of title 21 of the U.S. Code and regulates behavior ranging from manufacturing and mislabeling to prescribing controlled substances. Like any piece of complex legislation, the Act has spawned its share of litigation. One controversy has defied satisfactory resolution: the meaning of the innocuous phrase, "the offense," in section 851(a)(2). The statute's structure …

Drug Treatment Courts: Evolution, Evaluation, And Future Directions, Gloria Danziger, Jeffrey Kuhn

All Faculty Scholarship

No abstract provided.

Rethinking The Tough Sentencing Of Teenage Neonaticide Offenders In The United States, Christine A. Fazio, Jennifer L. Comito

Fordham Law Review

No abstract provided.

Crack As A Moral Panic: The Racial Implications Inherent To Crack And Powder Cocaine Sentencing, Deena R Trueblood

UNLV Retrospective Theses & Dissertations

This thesis explores the nature and extent of the print media's coverage of crack cocaine to determine whether a moral panic ensued during the late 1980's. A content analysis was conducted on the Los Angeles Times from 1985 to 1990, examining both the nature and extent of the Los Angeles Times' coverage of crack cocaine as well as the relationship between this drug and its association with Blacks. The findings of the content analysis provided support for the hypothesis that a moral panic did in fact take place in the late 1980s with respect to crack cocaine. Further, that this …

An Analysis Of Rule 11 Plea Bargain Options, S. Crincoli (Sigman)

Scholarly Works

No abstract provided.

Proportionality And Punishment: Imposing Life Without Parole On Juveniles, Wayne A. Logan

Scholarly Publications

The Eighth Amendment provides that “no cruel and unusual punishment shall be inflicted.” The Supreme Court has interpreted to this to mean a punishment cannot be “grossly disproportionate” to the crime. In this article, the author addresses whether an offender's age should play a role in assessing whether a sentence is “grossly disproportionate.” Specifically, the author addresses the increasingly common practice of imposing life without parole on offenders who are under sixteen years of age at the time they committed their offense, and whether such offenders’ youthful status should play a role in proportionality analysis. The article first provides an …

Coping With "Loss": A Re-Examination Of Sentencing Federal Economic Crimes Under The Guidelines, Frank O. Bowman Iii

Faculty Publications

This Article has three objectives. First, it attempts to rethink the sentencing of federal economic criminals in light of the basic purposes of sentencing and of the Guidelines' particular structure and objectives. Second, it examines the deficiencies in the current sentencing guidelines regarding theft, fraud, and other economic crimes, and the problem areas in the case law construing those guidelines. Third, it proposes and analyzes a consolidated guideline, together with accompanying application notes, for sentencing virtually all theft and fraud cases (a draft of which follows the text of this Article as Appendix A).

Coping With "Loss": A Re-Examination Of Sentencing Federal Economic Crimes Under The Guidelines, Frank O. Bowman, Iii

Vanderbilt Law Review

The primary determinant of sentence length for federal economic criminals is the amount of "loss" resulting from an offender's conduct.' The idea of basing sentences for economic crimes primarily on "loss" has become the source of ongoing, complex, and proliferating disputes about what the term "loss" really means and how it should be interpreted in particular cases. The "loss" calculation is one of the most frequently litigated issues in federal sentencing law. There are at present splits of opinion between the federal circuits on at least eleven analytically distinct issues concerning the meaning and application of the "loss" concept. Even …

Is Hiv "Extraordinary"?, Jordan B. Hansell

Michigan Law Review

The Sentencing Reform Act of 1984 (the "Act") attempts to reduce inconsistencies in the sentences of defendants convicted of comparable crimes. The Act created a Sentencing Commission (the "Commission") and authorized it to promulgate a set of sentencing guidelines to steer judicial decisionmaking. To fulfill this mandate, the Commission drafted the Federal Sentencing Guidelines (the "Guidelines"), which Congress enacted in 1987. Although Congress wanted to eliminate sentencing disparities, it also wanted to allow some degree of individualized sentencing. To achieve the correct balance, the Commission created three categories of characteristics: those a court must consider in sentencing each defendant; those …

On Seeking Controlling Law And Re-Seeking Death Under Section 2929.06 Of The Ohio Revised Code , Margery B. Koosed

Cleveland State Law Review

This article explores and analyzes the two-pronged legal dilemma that confronted the court in State v. Marshall: in Ohio, finding the correct sentencing law is often difficult; and a recent amendment to the resentencing portion of that law, S.B. 258, destroys the efficiency that was characteristic of Ohio's previous resentencing framework. Consequently, Part II of this article examines the facts and holding of State v. Marshall and suggests that finding the applicable law must be simplified. Practitioner handbooks are often confusing and incomplete, in part as the Ohio legislature generates an ever-changing body of law. Justice and the lives of …

A Rational Discussion Of Current Drug Laws, Nicholas Deb. Katzenbach

Fordham Urban Law Journal

This article that declaring a "war" on drugs was bad policy. It argues that the bad effects of the laws against drugs outweigh its benefits and argues for a new approach to legislation on drug use.